Posted by
NOTLEGALROADKILLYET on Sunday, October 08, 2006 11:58:55 PM
This post could have been called "I Don't Rant-I Write 2" as that is the catalyst for my addressing the subject tonight of the Law of Unintended Consequences.
We have many laws, court rules, and customs regarding litigation in Colorado. If one looks at them individually, they are all well meaning. Well, maybe not all, but most. Take the statute of limitations, for example. If there were no such law, it would be possible for a DA to spring a charge on an individual for a 20 year old event. Many people have trouble remembering where they were last week, let alone trying to defend themselves involving 20 year old events. Most people would think a statute of limitations is a good law.
Likewise, there is a tradition, if not a rule or law that attorneys should not threaten or file criminal charges when a civil lawsuit is in progress. For example, quoting once again from the Rocky Mountain article: "It's shocking," (Former DA Bob) Grant said. "And this has to do directly with her service as a prosecutor. That's just clearly one of the things that you don't go near: threatening criminal prosecution in a civil situation."
I happen to think that the legal system needs to rethink this one, if not in the context of the ethics trial (that should never be) at least in the context of the Law of Unintended Consequences.
I've described thought experiments elsewhere. Let's conduct one now.
Suppose an individual has no idea that he is the intended victim of a scam, and only knows that his property has been damaged, he thinks through negligence. Suppose also that he attempts to recover the damages through a lawsuit. Suppose that the Defendant files an answer with forged documents and a false statement that alerts the Plaintiff for the first time that the Defendant intended to use the legal system to fraudulently do great financial damage. Suppose it also causes the Plaintiff to rethink the events leading up to the lawsuit and realize he has been the victim of multiple crimes.
With this set of circumstances, when is it legitimate for the victim to file charges? I've never heard it argued that a victim can file until his civil suit is done, and that is the gist of Bob Grant's comment above. In this situation, the unintended consequence is that it is in the Defendant's interest to drag the lawsuit out by any means possible past the statute of limitations. Civil trials do not stop the statute's run. There is one charge in this thought experiment that totally lacks a statute of limitations, forgery. It that charge is involved, then it is in the Defendant's interest to drag the lawsuit out indefinitely.
This experiment could be carried further. Suppose that during deposition the Defendant committed obvious perjury. That crime has a 3 year statute, so it becomes important to push the trial out three more years.
I think it is entirely possible for a litigant to be a victim of serial crimes, such as burglary, perjury, etc., over a period of years and be totally powerless to stop them if the perp is the Defendant. Such is the power of the law of unintended consequences.
I've found a number of other areas in the law where combinations of laws/rules create very undesirable situations for litigants. Since this one is in the news, I thought it useful to discuss.