dispute, and there are claims of fraud,
conversion or embezzlement. Your civil
suit has possible criminal implications. If
no criminal action has been commenced,
the defendant must be mindful of the risk
of future criminal exposure. That could
mean asserting the Fifth Amendment
Privilege.
If a criminal action has been
commenced, don't fight a two-front
war. A defendant must consider filing
a motion to stay the civil action. In
California, the Ninth Circuit's opinion
in Keating sets forth the factors courts
will examine in considering a Motion to
profoundly improve your chances of
success in both actions.
Potential criminal exposure can be
crippling to the defense of a civil case.
If you invoke your Fifth Amendment
privilege, you cannot tell your version of
the disputed events. On the other hand,
if you don't invoke the privilege, you
expose yourself to potential criminal
prosecution and the possibility of being
sentenced to jail. The solution is to
seek a stay of the civil action until the
criminal case is concluded.
In the western U.S., the seminal case
on the stay issue is Keating v. Office of
Thrift Supervision (9th Cir. 1995) 45
F.3d 322. In Keating, the Ninth Circuit
established five factors that courts should
consider when a stay is sought:
litigation or any particular aspect
of it, and the potential prejudice to
plaintiff of a delay;
on defendants;
efficient use of judicial resources;
establish. The burden imposed on the
defendants if a stay isn't ordered is the
reason to seek a stay in the first place.
The moving defendant need only show
be forced to choose between his Fifth
Amendment privilege or defending
himself in the civil case.
Although identified in Keating, some
of the factors either aren't an issue or are
also easily established. The interests of
persons not parties to the subject action
are often absent from a case. So, too, is
the interest of the public in the particular
criminal and civil litigation.
Similarly, the "convenience of the
court" is merely a reiteration of an
accepted principal that trial courts
have inherent power to stay a case in
the interests of justice and to promote
judicial efficiency. A party opposing a
stay would be hard pressed to convince
a trial judge that it would be more
convenient to have two cases proceeding
simultaneously, with all of the attendant
problems it would pose for pre-trial
discovery and trial.
The one Keating factor that is likely
to prompt a strenuous opposition from
the plaintiff is "the interest of the
plaintiff in proceeding expeditiously." It
goes without saying that virtually every
plaintiff wants his or her case to proceed
expeditiously and will argue against the
delay that would be caused by a stay.
There are, however, several arguments
that the defendant can offer to blunt
plaintiff's opposition.
First, the amount of delay caused by
a stay is entirely a matter of conjecture.
Many criminal cases are resolved without
a trial and some are dismissed outright
for one reason or another (key witness
lost, statute of limitations, etc.). In
those cases the delay could be minimal.
Murphy, LLP in San Francisco. His practice
focuses on commercial litigation with particular
expertise in securities, real estate, employment
and professional liability defense. Though his
career began in New York, he has been practicing
in California for 20 years.
601 Montgomery Street
Suite 1900
San Francisco, California 94111
dillinghammurphy.com