Dangerous Intersections: Parallel Civil and Criminal Prosecutions

By Mike Faulk

Representing the injured in a civil action while the tortfeasor is prosecuted by the State for a crime arising out of the same incident presents special dangers for the plaintiff’s attorney. Consider this case: your uninsured client was severely injured by an uninsured drunk driver who spent the hours prior to the collision imbibing at the local tavern. The drunk driver is charged with vehicular assault.[1]

A dram shop case against the local pub appears to be the only avenue available for significant compensation.[2] While the drunk driver’s toxicology supports a claim that the pub served the patron when he was already obviously intoxicated, you have no eye witness who can confirm the sale of alcoholic beverages to the patron who appeared inebriated at the time of sale. With the drunk driver’s cooperation, you could prove the dram shop claim.[3]

Under no circumstances should you agree to serve as a special prosecutor. Tenn. Code Ann. § 8-7-401 in part provides: “A victim of crime or the family members of a victim of crime may employ private legal counsel to act as co-counsel with the district attorney general or the district attorney general's deputies in trying cases, with the extent of participation of such privately employed counsel being at the discretion of the district attorney general.”

An excellent discussion of the inherent conflicts between the role of government prosecutor and private prosecutor is found in State v. Eldridge, 951 S. W. 2d 775, 781 (Tenn. Crim. App. 1997). To serve these dual roles is tantamount to a violation of the criminal defendant’s rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution as well as the Law of the Land provision in Article I, § 8 of the Tennessee Constitution. [4]

Most, if not all, criminal prosecutors want the victim’s approval of any negotiated plea agreement. Driving while intoxicated is a lesser included offense of vehicular assault and is merely a misdemeanor rather than a felony. A plea to the lesser included offense of driving while intoxicated will surely be considered and likely proposed by defense counsel for the drunk driver.

Can there be a quid pro quo for the victim’s consent to a negotiated plea agreement? There is inherent advantage for a drunk driver tortfeasor in shifting as much comparative fault to the dram shop as possible especially since a judgment against a drunk driver is non-dischargeable in bankruptcy.[5] The terms of any such agreement between the drunk driver and the victim will certainly be vetted by the dram shop defense attorney.

Rule of Professional Conduct Rule 4.4(b) provides that a lawyer shall not threaten to present a criminal charge, or to offer or to agree to refrain from filing such a charge, for the purpose of obtaining an advantage in a civil matter. Even after criminal charges have been filed, great care should be exercised by plaintiff’s counsel in discussing these matters with the prosecution or the defense.

Surely a requirement that the drunk driver defendant tell the “whole truth” about how much he had to drink, the signs and symptoms of intoxication he exhibited while being served or sold alcoholic beverages, his tendencies and propensities when consuming intoxicants, and like matters should be a reasonable expectation of the victim and his attorney. And his telling the truth as to these matters should further the causes of both justice and public safety. But, just what a victim can and should expect or demand in exchange for the victim’s agreement to a reduced sentence for the drunk driver is a gray area within the Rules of Professional Conduct.

If a plea agreement is reached between the State and the drunk driver, it may be central to the successful prosecution of the civil case. Care should be taken by the plaintiff’s attorney in the civil case to see that the plea in the criminal case is taken meticulously and properly recorded. In a civil trial, evidence of a felony conviction would be admissible to prove the facts necessary to sustain a judgment.[6]

When the guilty plea is being taken by the criminal court judge, placement of the criminal defendant under oath is a must. A defendant is prohibited from taking a position in future litigation incompatible with a position taken in prior litigation when the prior position was so taken under oath.

“Estoppel by oath” is a form of judicial estoppel within the class of estoppels arising from sworn statements made in the course of judicial proceedings generally in the form of litigation. “The distinctive feature of the Tennessee law of judicial estoppel (or estoppel by oath) is the expressed purpose of the court, on broader grounds of public policy, to uphold the sanctity of an oath. The sworn statement is not merely evidence against the litigant, but (unless explained) precludes him from denying its truth. It is not merely an admission but an absolute bar.”[7]

Under the doctrine of “judicial estoppel”, where a person states under oath in prior litigation, “either in pleadings or testimony, that a fact is true, she will not be permitted to deny that fact in subsequent litigation.” [8]

As followed in a long line of cases in this state, under the doctrine of judicial estoppel, no showing of prejudice is necessary – but in order for the judicial estoppel to apply, the party against whom the estoppel is urged must have made a statement of fact under oath that he or she later seeks to contradict.[9]

Thus it is most important that the judge taking the plea recite the facts (usually found in the affidavit of complaint or the indictment or recited to the court by the prosecutor) to which the criminal defendant is pleading guilty. The defendant’s confirmation of those facts and his agreement that those facts constitute the elements of the offense to which he is pleading guilty (especially if the elements of the offense include recklessness) while he is under oath will help insure the proof of those facts in the civil case against both him and the dram shop.

Another key element in securing and keeping the cooperation and truthfulness of the drunk driver may be achieved in bifurcation of the taking of a guilty plea and the sentencing phases of the criminal prosecution. If both the State’s attorney and the trial court accepting the plea are willing, a delay in sentencing until after the civil case has been concluded is preferable. But, a delay in sentencing until the drunk driver has testified under oath in the civil matter may be advisable to insure the defendant testifies consistently and continues to cooperate in both civil and criminal cases.

Taking special care to avoid danger where parallel civil and criminal prosecutions intersect will well serve the interests of justice, your client, yourself.


[1] Tenn. Code Ann. §39-13-106. Vehicular assault; intoxication.(a) A person commits vehicular assault who, as the proximate result of the person's intoxication as set forth in § 55-10-401, recklessly causes serious bodily injury to another person by the operation of a motor vehicle. For the purposes of this section, "intoxication" includes alcohol intoxication as defined by § 55-10-408, drug intoxication, or both.

[2] See Tenn. Code Ann. §40-24-107 for criminal injuries compensation as it relates to driving while intoxicated.

[3] Tenn. Code Ann. §57-10-102 Standard of proof. Notwithstanding the provisions of § 57-10-101, no judge or jury may pronounce a judgment awarding damages to or on behalf of any party who has suffered personal injury or death against any person who has sold any alcoholic beverage or beer, unless such jury of twelve (12) persons has first ascertained beyond a reasonable doubt that the sale by such person of the alcoholic beverage or beer was the proximate cause of the personal injury or death sustained and that such person:

(1) Sold the alcoholic beverage or beer to a person known to be under the age of twenty-one (21) years and such person caused the personal injury or death as the direct result of the consumption of the alcoholic beverage or beer so sold; or

(2) Sold the alcoholic beverage or beer to an obviously intoxicated person and such person caused the personal injury or death as the direct result of the consumption of the alcoholic beverage or beer so sold.

[4] Eldridge, p.782.

[5] 11 U.S.C. §523(a)(9).

[6] Paine, Tennessee Rules of Evidence §803(22).

[7] Terox Corp. of America v. Carr, 52 Tenn. App. 595, 376 S.W. 2d 735, 738 (Tenn. App. 1964), citing Sartain v. Dixie Coal & Iron Co., 150 Tenn. 633, 266 S.W. 2d 313, 318 (Tenn. 1924).

[8] Cardin v. Campbell, 920 S.W. 2d 222, 223-24 (Tenn. App. 1995).

[9] Werne v. Sanderson, 954 S.W. 2d 742 (Tenn. App. 1997).