Personal Injury

Can I Sue for Assault While the Criminal Case is Ongoing?

By David Berg, Attorney
A look at the interplay between civil and criminal assault procedures, and when you can (and should) file a lawsuit against your assailant.

If someone assaults you, it's almost certainly going to be considered a crime, and chances are the assailant is going to get charged with a criminal offense, especially if you're cooperative with law enforcement. But, if you've been injured as a result of an assault, you likely also have the option of filing a civil case (specifically, a personal injury lawsuit) against your assailant. In this article, we'll cover the interplay of these two legal processes, with an emphasis on timing.

Criminal Versus Civil Assault

There are important differences between a criminal case and a civil case. In a criminal case, if the assailant is convicted, he or she could be imprisoned, and may also have to pay a fine and restitution. But the fine would be paid to the government, and restitution would most likely cover only your medical bills, not your non-economic losses such as pain and suffering stemming from the incident.

In contrast, in a civil case, you would be able to sue the assailant for the full extent of your losses, including past and future lost earnings and pain and suffering. Learn for about assault and battery as crimes and as intentional torts.

When Should You File a Civil Case?

While you can sue for assault while the criminal case is ongoing, the better question is whether you should. In general, it is better to wait until the criminal case is resolved before filing a civil lawsuit for assault. Let’s talk about why this is so.

Testimony Considerations

The most important reason is that, in a criminal case, the Fifth Amendment to the United States Constitution gives any person the absolute right to decline to answer questions about a case where the answers might incriminate him/her. So, if your assailant’s criminal case is ongoing, and you sue civilly, you would not be able to get the defendant to answer any questions about how the assault occurred. You could send interrogatories or subpoena the defendant to a deposition, but he/she would simply plead the Fifth and refuse to answer any questions about how the assault occurred.

That doesn’t help you in your civil case. In any personal injury lawsuit (and in any civil case), the plaintiff wants to find out what the defendant’s version of events is, and what the defendant says happened. And you wouldn’t be able to do that in your civil lawsuit until the criminal case is over.

But worse than that, the defendant might have the right to depose you. That means that the defendant could use the civil case to get you to testify under oath about how the assault occurred, before the criminal trial. This is significant because criminal defendants can’t always take the deposition of the victim before the criminal trial (absent any parallel civil proceedings).

So, if you file a civil lawsuit against your assailant, there is a reasonable chance that the defendant could depose you and use your testimony from the civil deposition to prepare for the criminal trial. You absolutely do not want that to happen. You don’t want to give your assailant any advantages whatsoever in the criminal trial.

Wait for the Conviction (or the Plea Deal)

Another important reason why you should wait until the criminal trial is over before filing a civil lawsuit is to see what happens in the criminal trial. If the defendant is convicted of assault in the criminal trial, in many states, you can use the fact of that conviction in a civil case. This is sometimes called filing a motion for partial summary judgment as to liability. If such a motion is granted, then the only issue you will need to address in the civil case is your damages. You would not need to relitigate the issue of liability, since it's essentially be established via the criminal conviction.

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