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Criminal Law

1. Make sure to have all certified records of the criminal proceeding. Te recommendation seems elementary, but some older cases require the production of such records even to simply argue the issue.

2. Get a statement from the defendant. As evidenced in Eagan, if the court has any question as to the nature of the issue sought to be estopped by the earlier criminal conviction, such a statement can resolve the issue. If you cannot get a statement, one should always check the transcript of the earlier criminal case. Judges conduct plea proceedings in slightly different ways. Some judges actually ask defendants questions about the events at issue. Some judges conduct lengthy conversations with defendants during the course of a sentencing. All these statements can help get you where you need to go.

3. Remember, that it is a rare circumstance that the only evidence of liability will be the criminal conviction, but it does happen. Be prepared to prove your case as if the conviction did not happen. If you rely too much on the conviction itself, a judge who strictly adheres to the Maryland rule could really hurt you.

4. When outside the evidentiary strictures of a

trial, remember that the fact that there has been a conviction can be very compelling. Insurance adjusters and mediators often consider the conviction conclusive on liability, even if the law does not.

5. Find another reason to admit the convictions. If it seems clear that the court will adhere to the Maryland rule, remember that the rule only precludes the convictions on the issue of liability. Tere may be other reasons the convictions are admissible. For Example, a crime of moral turpitude is admissible for credibility. Additionally, there is a good argument that evidence of a criminal conviction can relate to a jury’s consideration on damages.

6. Use the conviction in a Motion for Partial Summary Judgment on the issue of liability. Tere are several arguments (some of which are set forth in this article) for the court to consider the conviction conclusive on liability. If you lose, it does not hurt the case, because a plaintiff will need to put on evidence of the “breach of duty” to prove damages anyway. If the plaintiff prevails, settlement value just went up.

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Trial Reporter / Summer 2011 47 So the analysis ends where it began. Tat seemingly great

case that comes in the door may be just that. Nothing, however, takes the place of a practitioner well versed in the law and prepared to prove their case in a variety of ways. Tere may also be that case out there that screams for an all-out frontal assault on the counter intuitive rule precluding the admission of criminal conviction to prove liability in a subsequent civil case. I look forward to updating this research with such an opinion. 

Biography David Felsen is a principle in Greenberg, Felsen and

Sargent LLC in Rockville. His practice focuses on criminal litigation, personal injury cases, family law matters, and business litigation in the State and Federal courts. Mr. Felsen graduated from the University of Virginia in 1986 with a BA in Religious Studies and received his J.D. (summa cum laude) from American University, Washington College of Law in 1989. Mr. Felsen continues to receive the highest peer review ratings for legal ability and ethical standards. In 2005 Mr. Felsen was honored by the Montgomery County Office of the Public Defender as its Panel Attorney of the Year. Mr. Felsen is admitted to practice in Maryland, the District of Columbia, as well as the Federal Courts in those jurisdictions and the Second Circuit Court of Appeals (New York).

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