Assault...Lawyer or No Lawyer

[mark4man]

Jurisdiction

New Jersey

Hello...[first time here...hope this is the correct forum].

So...I was assaulted by an individual...grabbed by the neck & hurled to the floor, which resulted in my fracturing an existing left hip replacement. I had 6 favorable witnesses (who indicated that the individual attacked me, without me laying a hand on him). The police took 4 witness statements only, & decided they had enough to send an assault case to the county prosecutor's office. I am out of work for about 2-1/2 months.

The police officer who videotaped my statement told me that I needed an attorney, regardless of whether or not I needed to be compensated for lost wages or outstanding medical bills.

A friend of mine, whose Father was an attorney told me that: A) The police officer is in error…I do not need a lawyer, in general...the DA acts as my attorney. B) The prosecutor's office will ask me (as part of the assault case) if I had any financial losses as a result of the attack (medical bills, lost wages, etc.)...will ask for records of those losses; & will add those losses to the case, so that I am compensated financially if I am successful.

I cannot afford an attorney at this time (out of work, due to the attack & running a low bank account balance as a result); & at this point, do not know who to believe. Anyone here w/ experience of this nature?...sure could use some advice.

thanx in advance,


mark4man

Also…not sure if this is relative…dropped off medical records today at the police station (to be forwarded to the prosecutor's office); & they showed me what looked like a mug shot of the individual (full facial close up); & asked me to positively identify him (which I did). I then asked offhand the origin of the photo, to which they replied they could not divulge that information. So, I am assuming he has been arrested, or summoned for questions.

 

[Zigner]

Well, the DA/prosecutor's office doesn't actually represent you personally. The DA/prosecutor's office represents the state (which is why the case shows that the people of the state are prosecuting, not you). I agree that there is no requirement for you to hire an attorney right now, but keep in contact with the prosecutor so you can provide whatever assistance and information they may need. It is true that they can (and should) argue for restitution. Additionally, you should check out the Victims of Crime Compensation Office: Victims of Crime Compensation Office - New Jersey Office of Attorney General

VCCO is committed to serving crime victims and their families. VCCO staff is ready, willing and able to assist those affected emotionally, financially and/or physically by a crime. If you or someone you know has been the victim of a crime, you may qualify for reimbursement, so please contact VCCO, we are here to help.

A victim seeking VCCO benefits may receive a maximum award of up to $25,000. If a victim's injury is catastrophic, meaning the victim has lost permanent use of a bodily function, the maximum award increases up to an additional $35,000.

 

[zddoodah]

The police officer who videotaped my statement told me that I needed an attorney, regardless of whether or not I needed to be compensated for lost wages or outstanding medical bills.

A friend of mine, whose Father was an attorney told me that: A) The police officer is in error…I do not need a lawyer, in general...the DA acts as my attorney.

The DA does not act as your lawyer. The DA represents the state. That being said, I agree that you don't need a lawyer. I do, however, think it would be a good idea if you have any inclination to file a civil lawsuit relating to the incident.

The prosecutor's office will ask me (as part of the assault case) if I had any financial losses as a result of the attack (medical bills, lost wages, etc.)...will ask for records of those losses; & will add those losses to the case, so that I am compensated financially if I am successful.

Sounds like a crime victim's restitution program (as per the prior response). I'd suggest talking with the DA about this before making a decision about a civil lawsuit. It may be that the restitution program exists and whatever compensation you receive from it will be sufficient. However, the potential recovery in a civil lawsuit will almost certainly be greater.

I cannot afford an attorney at this time

On the civil side of things, this is a personal injury case. Personal injury attorneys almost always offer free consultations and work on contingency (i.e., you don't pay the lawyer until and unless you have a recovery).

 

[mightymoose]

I do, however, think it would be a good idea if you have any inclination to file a civil lawsuit relating to the incident.

I fully agree. It sounds like you may very likely have ongoing medical expenses as a result of this and you will likely benefit from having an attorney. I suggest you at least speak to a couple attorneys to help decide when you should hire one.

 

[Redemptionman]

Yes, by all means get an attorney who might be able to get you a unrecoverable judgement. I would imagine the person who assaulted you has little to nothing in the way of assets.

Worth a shot I guess, but usually these things can get discharged when the prep declares bankruptcy. Good Luck.

 

[Tax Counsel]

Worth a shot I guess, but usually these things can get discharged when the prep declares bankruptcy. Good Luck.

Most judgments due to assault are not eligble for discharge in bankruptcy. It is an intentional tort, and generally the bankruptcy code denies discharge for judgments arising from an intentional tort. As to assault and other acts of violence, 11 U.S.C. § 523(a)(6) excludes from discharge claims "for willful and malicious injury by the debtor to another entity or to the property of another entity". This provision has been applied by the bankruptcy courts to include intentional torts like attempted murder, assault, etc. So, if a judgment for damages from an intentional assault is obtained against the debtor and the debtor files bankruptcy, in general that claim for damages from the assault would survive the bankruptcy. Because judgments in some jurisdictions can last a long time, it may be worthwhile to get a judgment against the attacker even though the attacker is broke now and has barely a nickel to his name. Some years down the road that debtor may come into some money or property that can be attached to pay the judgment.

 

[Redemptionman]

Most judgments due to assault are not eligble for discharge in bankruptcy. It is an intentional tort, and generally the bankruptcy code denies discharge for judgments arising from an intentional tort. As to assault and other acts of violence, 11 U.S.C. § 523(a)(6) excludes from discharge claims "for willful and malicious injury by the debtor to another entity or to the property of another entity". This provision has been applied by the bankruptcy courts to include intentional torts like attempted murder, assault, etc. So, if a judgment for damages from an intentional assault is obtained against the debtor and the debtor files bankruptcy, in general that claim for damages from the assault would survive the bankruptcy. Because judgments in some jurisdictions can last a long time, it may be worthwhile to get a judgment against the attacker even though the attacker is broke now and has barely a nickel to his name. Some years down the road that debtor may come into some money or property that can be attached to pay the judgment.

True has to be willful waton conduct. This is hard to prove in court mainly a jury determination and that also assumes he doesn't get a plea in criminal court, which he will.

 

[mark4man]

Everyone...

THANX...!!!...all great info, very much appreciated.

mark4man

 

[Tax Counsel]

True has to be willful waton conduct. This is hard to prove in court mainly a jury determination and that also assumes he doesn't get a plea in criminal court, which he will.

There doesn't have to be a criminal conviction for the exclusion from discharge to apply. The creditor only need prove it to the bankruptcy judge by a preponderance of the evidence that the debt was due to the proscribed conduct. A criminal conviction or civil judgment for assault would be a big help in convincing the bankruptcy court though.