Pitfalls of advising your client to pursue a civil claim in the District Court Criminal Session

Issue November/December 2016 By Beth Pirro Cook

In many instances, clients bring problems to practitioners that raise both civil and criminal issues. A client could ask for advice about how to collect on a personal loan made to an acquaintance who paid off the loan with a check that bounced. Or a client could seek help with getting back a $10,000 deposit she gave to a home contractor who never started the home repair work. While it may be tempting to advise these clients to proceed with a private-party criminal claim because it will save attorney fees and costs relating to litigating a civil case, you should carefully consider the nature of the criminal process before advising your client to pursue this avenue instead of seeking civil relief.

It would be prudent to have your client speak with the police before proceeding to the courthouse. While the procedures may vary from courthouse to courthouse, some magistrates make this conversation a prerequisite as the police may wish to conduct their own investigation of your client's claims and bring their own complaint. Standard 3:06, District Court Standards of Judicial Practice: The Complaint Procedure (2008)("The Complaint Procedure").

Your client should be familiar with what information is necessary to begin the criminal process. The criminal complaint application will require your client to write out a narrative of the claim that is signed under the pains and penalties of perjury. The application also requires your client indicate exactly what chapter and section of the law has been violated by the accused, as well as the specific date of each offense. This information is not only needed to properly inform the clerk and the accused of the nature of the criminal claim, but is also necessary for entering the case into the MassCourts computer docketing system. MassCourts also requires additional information for particular crimes; for example, a Conspiracy allegation mandates naming the conspirators and the alleged underlying crime. Another important piece of information your client should know is the birthdate of the accused. Without this, if the complaint issues, then the charge cannot be entered into the Criminal Offender Record Index, nor could arrest warrants be processed in the Warrant Management System.

Before the application papers are accepted for filing, your client will meet with a magistrate to discuss the complaint procedure and to determine if other resolutions would be advisable, such as seeking relief with a civil complaint. Standard 3:03, The Complaint Procedure. There is a $15 filing fee for misdemeanor complaints and no filing fee for felony complaints. Although the Clerk's Office must accept all complaint applications, an applicant is not entitled to a show cause hearing before a magistrate. Victory Distributors, Inc. v. Ayer Div. Of the Dist.Court Dept., 435 Mass. 136 (2001); Standard 3:00, The Complaint Procedure. If a show cause hearing is authorized, your client will have the burden of satisfying the probable cause standard. You and your client should expect the magistrate to attempt to resolve the matter between the parties at the hearing. If an agreement is not reached, the Magistrate will review your client's evidence and decide whether probable cause exists. Private complainants have no right to appeal a magistrate's decision on probable cause. Id., 435 Mass. at 143, Standard 3.00.

If the magistrate authorizes the issuance of a criminal complaint, your client will have to return to court to sign the complaint under the pains and penalties of perjury. At this point, prosecution of the case is taken over by the Commonwealth and your client becomes one of the Commonwealth's witnesses. Note that in this capacity, your client will not be able to watch the trial if the court makes a witness sequestration order. Also, neither you nor your client will likely directly participate in any negotiations with the accused, which could lead to disappointment with the outcome of any plea agreement. Furthermore, particular issues will arise if your client seeks restitution. In Commonwealth v. Henry, 475 Mass. 117 (2016), the Supreme Judicial Court has recently held that a sentencing court is required to consider both the defendant's financial resources and his ability to pay when ordering restitution. This potentially affects both the amount of the restitution and the amount of time the defendant has to pay it. Under Henry, it is possible that the restitution amount ordered by a court will not fully compensate your client's loss. Id. at 125. Moreover, a court cannot extend a probationary term for the sole purpose of satisfying restitution. Id. at 124. As a practical matter, if probationary terms other than restitution are imposed and the defendant later violates those terms, his probation could be revoked and his punishment could include a term of incarceration. If he is incarcerated, he would be relieved of all probation obligations, including the obligation to pay the restitution owed to your client. Should this happen after the civil statute of limitations has expired, often three years, your client would be barred from seeking civil relief.

Practitioners should make sure that their clients are fully aware of the criminal process before they seek to file a private criminal complaint. While clients may be upset with their home contractor or an unreliable debtor, any satisfaction in seeing them criminally prosecuted might pale in comparison to receiving restitution. Therefore, if your client is primarily seeking to recover monetary losses caused by the accused, then the criminal road could lead to disappointment. In most instances, clients are better served by a civil judgment that accrues yearly interest and can be enforced through multiple collection avenues.

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