How a Criminal Record Affects Your Personal Injury Case

Does Having a Criminal Record Affect My Personal Injury or Workers Comp Case?

Find Out How Having a Criminal Record Can Hurt Your Case and What You Can Do to Minimize Its Impact

Nobody has a perfect past. And if you are reading this article, you may even have a criminal history.

When file a workers comp claim or a personal injury action based on another driver’s negligence, the defendant’s insurance company or third party claim adjuster (TPA) will investigate your background.

There are several reasons for this but the two main ones are: (1) to find a way to attack your credibility and likability, since many cases come down to this and (2) to find evidence of prior injuries to show that your current symptoms and disability are unrelated to the workplace accident or car crash.

The purpose of this article is to discuss how the insurer may use your criminal record to attack your credibility and likability and to defeat your claim or to justify a lower car accident settlement amount or jury award of damages. And how to overcome this insurance company tactic.

Though some insurers don’t like to admit it, people with a criminal past suffer legitimate injuries too. And should get fair compensation.

If you have any questions after reading this article, call me for a free consultation: (804) 251-1620 or (757) 810-5614. I help auto accident victims and injured employees get the personal injury and workers compensation settlements they deserve.

How Can a Criminal Record Hurt My Personal Injury Case?

There are several ways a criminal past can hurt your personal injury case:

• If you decide to go to trial rather than settle, a jury of your peers will decide your personal injury case. Many people view a criminal record negatively. This is unlikely to affect your ability to prove that the defendant’s negligence caused your injuries. But it may affect the amount of money you are awarded for your injuries and pain and suffering. This is not a problem in workers compensation, however, as a deputy commissioner will decide your claim, not a jury. And workers compensation benefits are set by statute.

• Unless you suffered a catastrophic injury, such as an amputation, burn injury, or spinal cord injury resulting in the need for a spinal fusion, the insurer is likely to offer a lower settlement amount if it is aware of your criminal record. It will likely think a jury will reduce the amount of damages you receive, and the settlement offer may reflect this belief. Further, insurance companies don’t like to make large settlement offers to people with past criminal convictions, especially if they believe you may end up back in jail.

• If there is conflicting testimony about who is at fault for the accident and who should be found liable, or if your medical records indicate that you are malingering or exaggerating your symptoms, the insurer will use your past criminal conviction to attack your credibility and try to win on these issues.

As a general rule, the more serious and recent your criminal conviction, the greater its potential impact on your personal injury case. A conviction from more than ten years ago is unlikely to have a major impact, especially if you show how you have turned your life around and become a law-abiding citizen the past few years.

Is My Criminal Record Admissible in a Civil Trial or Workers Compensation Hearing?

When you are giving a deposition or answering written interrogatories as part of discovery in your workers compensation or personal injury case, the defense attorney will usually ask:

• Have you ever been convicted of a felony?

• Have you ever been convicted of a crime involving moral turpitude (lying, cheating, or stealing) or deception?

• Can you describe every criminal charge or conviction that appears on your criminal record, including the date and nature of the conviction?

If you aren’t expecting these questions, they can come as a surprise and put you on the defensive. Especially since your criminal conviction is not relevant to your personal injury claim.

Fortunately, many states limit the admissibility of evidence of past criminal charges and convictions at trial. Virginia is one of those. And you may have no obligation to answer all or part of a question about your criminal record.

Rule 2:609: Impeachment by Evidence of Conviction of Crime

Rule 2:6909 of the Virginia Rules of Evidence allows an insurance company to try to use your criminal record to impeach your credibility. But with the following limitations:

• The insurer can only ask about prior felony convictions, or misdemeanor convictions involving moral turpitude (lying, cheating, or stealing). Other convictions are off limits.

• The insurer can not ask for the name or nature of any crime of which you were convicted, unless it was perjury.

If you hire an attorney after your auto accident, he should object to any questions that ask for these specifics and advise you not to answer.

Admissibility of Past Criminal Convictions in Workers Compensation

In Himchak v. Rite Aid Corporation, VWC File No. 202-33-23 (July 24, 2001), the Virginia Workers Compensation Commission addressed how much information an injured employee has to disclose about past criminal convictions. It stated:

The Supreme Court of Virginia has spoken in regard to the use of evidence regarding prior felony convictions for impeachment of parties in civil cases. In Payne v. Carroll, 250 Va. 336, 461 S.E.2d 837 (1995), after conceding that the defense had the right to show the fact of conviction, the plaintiff argued that the defense could not show the nature of the felony. The Court wrote:

The issue framed in this appeal is one of first impression in this Court. Until now, we have considered the question of disclosure of prior felony convictions for impeachment purposes in criminal prosecutions and the question of limitations upon such disclosure.Now, we consider those questions in the context of civil proceedings. Code § 19.2-269, part of the criminal procedure title of the Code, provides that “[a] person convicted of a felony of perjury shall not be incompetent to testify, but the fact of conviction may be shown in evidence to affect his credit.” Construing a predecessor of that statute, former Code § 19.1-265, to determine the permissible scope of cross-examination of the accused in a murder trial, we said that “the fact of conviction of a felony may be shown by the Commonwealth, but the name of the felony, other than perjury, and the details thereof may not be shown.” Harmon v. Commonwealth, 212 Va. 442, 446, 185 S.E.2d 48, 51 (1971).

Payne v. Carroll, 250 Va. 336, 338-40, 461 S.E.2d 837, 838-39 (1995). See also CHARLES E. FRIEND, THE LAW OF EVIDENCE IN VIRGINIA, Section 4-4 (5th ed. 1999). The Supreme Court of Virginia has confirmed that the rules applicable to impeachment by prior convictions are equally applicable to criminal defendants and parties in a civil case.

How Can I Minimize the Impact That My Criminal Record Has on My Personal Injury Case?

If you want to maximize the value of your claim under workers comp or negligence and tort law, don’t ignore your criminal record. Instead, recognize how the defense attorney may use it against you and take steps to overcome this insurer tactic.

Common methods to minimize the effect of a criminal record include:

• Tell the truth. A skilled attorney can usually handle a criminal past or other bad facts. But surprises are a different story. If you are caught lying about your criminal history on cross examination, it is unlikely that the jury will take your side when there is conflicting testimony on other issues.

• Settle your case relatively quickly, before filing a lawsuit. Many claim adjusters will not investigate your criminal background unless they have some specific reason to do so. By settling your claim before the claim adjuster refers it to a defense attorney, you can avoid the potential problems a criminal record can cause.

• File a motion in limine before trial or your workers compensation hearing, asking the court to exclude testimony and evidence about your criminal record on the grounds that it is prejudicial and not relevant.

• Waive the right to a jury trial and allow a judge to decide your case. This is a major decision and one that you should not take lightly. I only recommend this to clients with an extensive criminal record involving violent felonies.

• When choosing a jury (this process is called voir dire), ask potential jurors if they would have any problem awarding significant damages to a person with a criminal past.

• During your testimony, bring up your criminal record and discuss it, particularly if many years have passed since the conviction. A judge or jury will appreciate your honesty if you bring it up first and may find the defense attorney is bullying you by asking questions about convictions from so long ago. This could result in a greater award of damages.

Don’t Let a Criminal Record Keep You from Getting Fair Compensation for Your Personal Injuries

The best way to make sure your criminal record does not hurt your personal injury case is to develop all the evidence you need to prove your claim and to focus on organizing the facts so that you tell a clear story at trial.

If you are hurt at work or by someone else’s negligent driving, you should not be penalized just because you did something wrong in the past.

For help overcoming this potential defense to your claim and maximizing the amount of money you receive for your damages, call me today: (804) 251-1620 or (757) 810-5614. Come see why my colleagues and past clients have voted me one of the top personal injury and workers compensation attorneys in Virginia.