When filing a personal injury claim predicated upon another person’s negligence, the respondent’s insurance carrier or third-party claims adjuster is going to dig into your past. Nobody is perfect but, if you have a criminal history and a pending Virginia personal injury case, this might be worrying to you.
There are several reasons for the other side to perform a background check but they generally have two primary motivations. The first is finding a way to call your credibility into question and make you less likable, which is a factor in many cases. The second is to try to find proof of previous injuries, thereby demonstrating that your present disability and associated symptoms are unrelated to your accident.
Clearly, having a prior felony for which you have completely rehabilitated has nothing to do with the magnitude of your personal injuries, but it could have relevance to your credibility and that’s why it becomes a potential issue if your personal injury claim goes into a litigation phase.
If I’ve been convicted of a felony, will it be used against me in my Virginia personal injury case?
This post will examine how the insurance company could use your criminal past to attack your integrity and character in order to defeat your case or justify a smaller jury award or settlement amount, and how to successfully prevail over this underhanded tactic. After all, just because someone has a criminal past does not mean they don’t deserve fair compensation for their injuries.
Rather than leaving it up to chance and simply hoping for the best outcome to your Virginia personal injury case, speak with an experienced Virginia personal injury lawyer at Shapiro, Washburn & Sharp to learn more about the best way to proceed. Our attorneys are licensed to practice law in North Carolina and Virginia, and are active in national, state, and/or local trial lawyer organizations.
How Can a Criminal Record Hurt My Personal Injury Case?
Unfortunately, there are a few ways that a criminal record could potentially harm your personal injury case. Some examples include:
- If you opt to go to trial instead of accepting a settlement, your personal injury case will be decided by a jury of your peers. While it is highly unlikely that it would affect your ability to show that the respondent’s negligence led to your injuries, it could have a bearing on the amount of compensation you collect for your damages.
- If the injury you sustained was not catastrophic, like a third-degree burn, an amputation, or damage to your spinal cord, the insurance company is going to offer a lowball settlement when it discovers your criminal record. Once a jury is provided with this same information, they could reduce the damages you receive. The low settlement offer is indicative of this likelihood. Additionally, insurance carriers do not enjoy offering major settlements to people who have a criminal conviction.
- If testimonies regarding liability for the accident are in conflict, or your medical records suggest that you are embellishing or exaggerating your symptoms, the insurance company will use your criminal conviction to find fault with your credibility and attempt to win the case using these issues.
As an unwritten rule, the more recent and serious your criminal charges, the greater the impact they could potentially have on your Virginia personal injury case, so is doubtful that a conviction from two decades ago would have much of an influence. This is especially true if you are able to demonstrate that you have turned over a new leaf and are now a model citizen.
Can My Criminal Record Be Admitted in a Civil Trial?
When you are answering written interrogatories or giving a deposition as part of the discovery process, the defense attorney will ask you questions such as:
- Have you ever been convicted of a crime involving deception or moral turpitude?
- Have you ever been convicted of a felony?
- Can you describe the criminal charges on your record, including the date and nature of each conviction?
If you are not prepared for these questions ahead of time, they can come as a bit of a shock and cause you to respond defensively. This is understandable since your criminal charges are likely not related to your claim. You and your personal injury attorney should carefully prepare your answers to interrogatories and disclose any criminal conviction, and should also prepare for how you would respond in your oral deposition.
Fortunately, a lot of states, including Virginia, restrict the admissibility of evidence of previous crimes and convictions at trial. In fact, depending on the circumstances, you may not be obligated to answer part or all of a question concerning your criminal record.
Rule 2:609: Impeachment by Evidence of Conviction of Crime
Rule 2:6909 of the Virginia Rules of Evidence authorizes an opposing party to attempt to use your criminal history to impeach your credibility but with certain constraints, such as:
- The insurance company may only ask about previous misdemeanor convictions that involve moral turpitude (lying, cheating, or stealing), or felony convictions. Anything else is impermissible.
- The opposing party may not inquire about the nature of any crime for which you were convicted with the sole exception of perjury.
When you hire a Virginia personal injury lawyer from Shapiro, Washburn & Sharp, we will advise you on how to respond and object to any questions asking for these details in many circumstances.
Witness Impeachment in a Virginia Personal Injury Case
The limitations of the Virginia Rules of Evidence do not extend to witnesses. Witness impeachment is the process of questioning the credibility of someone giving testimony in a trial. Generally speaking, the person testifying can be impeached with a felony conviction or with a lesser conviction involving moral turpitude. The defense can discredit a witness by cross-examining them about facts that attack their character or, in some instances, by submitting extrinsic evidence that shows the witness’s knowledge or candor in a negative light.
How Can I Mitigate the Impact of My Criminal History On My Civil Case?
In order to increase your claim’s value, do not disregard your criminal record. Understand how a defense attorney might attempt to use it against you and take ownership of the situation to get the upper hand on this defense tactic.
Some tried and true methods to help reduce the effects of a past criminal conviction include:
- Telling the truth. An experienced lawyer will be able to deal with a criminal past or other negative information. Surprises, however, are another story altogether. If the jury finds out you are lying about anything, including your criminal history, on cross-examination, they are not likely to believe you if your testimony conflicts on other matters.
- Settling your case fairly quickly, before filing a suit. The majority of claims adjusters may not look into your background without a very specific reason for doing so. If you settle your claim before the adjuster hands it off to a defense attorney, you may circumvent the issues often caused by a criminal record.
- Filing a motion in limine. Request that the court exclude evidence and testimony regarding your criminal history on the grounds that it is irrelevant and prejudicial.
- Waiving your right to a jury trial and letting the judge decide your case. This is an important decision; one that should not be taken lightly. This recommendation extends primarily to clients with criminal records that include violent felonies.
- During voir dire (jury selection), potential jurors should be asked if they have any issues with awarding significant compensation to someone with a criminal record.
Is Your Criminal Record Keeping You From Fair Compensation?
The best way to ensure that your criminal record doesn’t interfere with your Virginia personal injury case is to gather as much evidence as you can to prove your claim and concentrate on using it to tell a clear and consistent story at trial. If you were injured in a negligence-based accident, you should not be forced to face economic hardships because of the mistakes you made in the past.
If you are considering pursuing a Virginia personal injury case and are concerned about the role your criminal record might play, schedule a free confidential consultation by calling (833) 997-1774. At Shapiro, Washburn & Sharp, our Virginia personal injury lawyers are among the top-rated in the state. We have built our reputations and credibility through diligence, dedication, and smart, assertive legal representation.