If you or a loved one are a victim of crime, there are two legal systems available to bring justice: the criminal justice system, which in all cases is administered by the government, and the civil justice system, which, while typically administered by lawyers, is controlled by YOU.
An assailant prosecuted in the criminal justice system can, in many cases, bring relief or at least some degree of satisfaction or closure for many victims of crime or families of loved ones lost. However, many victims of mass shooter events or even single-assault events need the kind of support and results only the civil justice system can provide. While there can be an award of financial compensation through the criminal justice system, the civil justice system can result in a much larger economic compensation.
The pursuit of justice through the civil court system can be a challenge though. By pursuing civil litigation, a victim and their family are forced to re-live the traumatic events that led to their injuries or death. Because of this, the decision of whether to pursue a civil lawsuit requires careful consideration. For some, particularly those who have not experienced a desired level of closure through the criminal justice system, pursuit of individuals or entities through the civil justice system can not only provide just compensation for their loss but can be empowering to a victim or the family of a loved one left behind.
The criminal system requires proof “beyond a reasonable doubt.” However, in the civil justice system, you are in control and must only show “a preponderance of the evidence” in your favor. This means a civil lawsuit is an easier standard to prove. Instead of “beyond a reasonable doubt,” it’s, “is it more likely than not?”
Let’s take a look at the “pros” and “cons” of pursuing a civil lawsuit:
- Pros:
- A civil suit can provide compensation for past, present, and future medical expenses, care, and treatment for both physical and emotional damages.
- Sometimes, regardless of the amount, prevailing in a civil suit against those individuals or entities that are negligent or responsible aids in the emotional healing process.
- You are in charge and enabled.
- Sometimes you can be a catalyst for change, hopefully making what happened to you or a loved one less likely to happen to others.
- Cons:
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- The wheels of justice turn slowly. As a plaintiff, while your standard of proof is lower than in the criminal justice system, you also have the burden of proof. You must prove your case and that takes time.
- While your lawyer may be able to keep some of your prior conduct, injuries or mental health history from disclosure, you may have to give up some of that privacy.
- You will likely have to re-live much of the experience that led up to your injuries or the death of a loved one.
- A judge or jury may disagree and not winning the case can be devastating to some claimants.
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So, if you decide to pursue civil justice, who pays in a civil lawsuit? Rarely are victims of mass shootings or their families compensated by an assailant for their losses. Victims of mass casualty events, other than through statutory worker’s compensation, are often precluded from recovering compensation if the victim is killed or injured at, or in some cases, even in the area of the workplace. Unfortunately, in many states the law has either completely prevented – or made it almost impossible – to recover damages from an employer. ‘Almost impossible’ is the key phrase here.
Recovery through the civil justice system against an employer, landlord or business entity may be difficult, but oftentimes not impossible. We were privileged to represent several victims of a mass-shooting event in Georgia who were shot by a former employee returning to the workplace. While the courts precluded us from filing or pursuing an action against the company itself or its parent company, we were able to proceed against two other companies owned by the same parent company that participated in providing security to the workplace where our clients were employed and injured in the mass shooting event.
Let’s compare the law in Georgia to the law in Indiana where we are privileged to represent six of eight people killed in a mass-shooting event. The courts not only prohibit action against the employer but prohibit any action against the parent company or any company the parent company owns. (See. Johal et al. vs. FedEx Corporation et al., U.S. District Court for the Southern District of Indiana, Civil Action File No. 1:22-cv-00716-JRS-MG, Order dated October 17, 2022: …the injuries for which Plaintiffs seek redress allegedly “occurred by accident arising out of and in the course of employment.” Sims, 782 N.E.2d at 349–50. And, because the Indiana Worker’s Compensation Board has exclusive jurisdiction over the Act, this Court may not grant any relief on Plaintiffs’ claims.) Our clients had either just clocked into work or had just arrived when they were all shot. Yet in Indiana, the law says only worker’s compensation is available. We are still pursuing the security company providing protection to the facility and the gun manufacturer.
A civil suit is a private lawsuit and, in most cases, you need to retain an attorney. This is different from a criminal proceeding in which a state’s attorney files charges against the perpetrator on behalf of the people of the state. Most experienced and qualified attorneys pursue these civil cases on what’s called a ‘contingency’ basis – in other words, the attorney takes a portion of any compensation.
You need to select an experienced attorney with whom you are comfortable and with whom you trust. At Isenberg & Hewitt, we are experienced in handling civil suits brought on by active shooter situations and other mass casualties and we can help you. Give us a call at (770) 202-9480 or fill out our contact form.