You would think that plaintiffs' lawyers (read: the attorneys for victims) and prosecutors (read: the government attorneys who punish bad guys) would always be on the same side. After all, both seek to hold wrongdoers accountable for actions that harm people in the community.
In an ideal world, when a drunk driver hits someone, the prosecutor would file criminal charges and start the process of putting the drunk in jail. At the same time, the plaintiffs' attorney would seek civil damages (money for the victims' losses) from the drunk driver and any businesses that contributed to the crash. Therefore, you would that that when a plaintiff's attorney calls up the prosecutor and asks to share information, the prosecutor's reaction should be "I'll have a truck drop off my mountain of evidence on your doorstep, release the dogs of war against the bad guys." Unfortunately, that rarely happens.
In reality, the relationship between plaintiffs' attorneys and prosecutors can be pretty fraught. While the average person would just see two lawyers pursuing wrongdoers, the fact is they operate in different areas of the law. The prosecutor's client is the government and its interests, whereas plaintiffs' attorneys exclusively represent victims.
What's more, the law generally gives priority to the criminal case. That means that when a plaintiff's attorney asks a prosecutor for information, the prosecutor can ask the Texas Attorney General's office for an opinion that invariably says, "I don't have to give you or your client a thing." That leaves the victim and their attorney in an awkward position.
How Can Stonewalling Prosecutors Impact a Victim's Case?
Just to take this out of the realm of theory, let's talk about an actual incident in the news to see how these issues could play out. To be clear, I don't represent anyone in this case, but people are talking about it around the Dallas-Fort Worth area, and the issues that could arise are relevant to our discussion.
According to authorities, around 2:00am, December 1, 2024, an alleged intoxicated wrong-way driver, Edgar Cortez, crashed into a vehicle driven by local coach, Jonathan D. Washington. Mr. Washington died as a result of the crash. Prosecutors have charged Mr. Cortez with intoxication manslaughter.
In this incident, there is obviously a criminal prosecution. There's also a strong likelihood that there is a civil case against the alleged drunk driver. In addition, if that man was coming from a bar or restaurant (which is a strong possibility given that the crash occurred around last call), there may also be a potential lawsuit against the bar or restaurant. It's that last possible lawsuit that could lead to things getting prickly between the prosecutor and any hypothetical plaintiffs' attorney. Let me explain.
Prosecutors Often Have Information Victims Need
Before I start, let's be perfectly clear, the prosecutors in this case may share everything they have with any attorney who brings a civil case against those whose behavior led Mr. Washington's death. However, my experience in similar cases tells me that would be the exception, not the rule.
The hardest thing about holding bars and restaurants accountable when they contribute to accidents such as these is that before anything can happen, the victim's attorneys must identify and sue the right bar. Given that the alleged drunk driver in cases like these has 5th Amendment protections, most importantly the right not to speak, it's not a simple matter of asking the alleged drunk where he was drinking prior to the crash. In most instances, prosecutors have a good idea about the alleged drunk driver's whereabouts prior to the crash, as it's part of their case. That also makes them reluctant to share this information with the alleged victims. Remember earlier when I said that the prosecutor's client is the government? That means that prosecutors first duty is to further the government's interests in a successful prosecution. As a result, prosecutors often treat any information pertaining to the case as a state secret that they must protect at all costs, even from the victim's family.
This leaves victims and their attorneys left to pursue two less than optimal strategies; conduct a parallel investigation to get what they need (not a great solution) or wait for the prosecution to run its course and then access the prosecutors information (the worst strategy).
The Victims' Dilemma
The right time to act in any case is as as soon as possible. In the background of every potential civil case that a victim can bring is a closing window we call the statute of limitations. The statute of limitations is the period of time where it is permissible for a victim to bring a claim against a wrongdoer. This means that in cases where an alleged drunk driver was overserved at a bar prior to the crash, the victim has two years to identify the bar and file suit before the window to sue slams shut.
Often, the information identifying the bar or restaurant is in the prosecution's documents. If they shared those with the attorney for the victim's family, identifying and holding the bar accountable would be relatively straight-forward. However, since that information is rarely forthcoming, plaintiffs attorney must either conduct their own investigation or wait for the prosecution to finish before being able to access the information that identifies the bar.
The problem with waiting (and why it's the worst option) is that you're betting on the prosecutor wrapping up her case before the statute of limitations window slams shut. Since criminal prosecutions can drag on for years, the waiting strategy presents the very real concern that by the time the victim's attorneys learn which bar to sue, they will no longer be able to act on that information. Their case will be barred.
Instead, it's almost always necessary to conduct an independent investigation that runs parallel to the official police investigation. Hiring private investigators who can speak to witnesses, scour social media, and track down relevant electronic data without the authorities' help is often the only option plaintiffs' attorneys have. That's right: Even though prosecutors and police have already done a thorough investigation for their criminal case, it's often necessary for victims to go the through the time and expense of a completely new investigation in order ensure everyone is held accountable.
Victims, Don't Expect the Prosecutor to Help with Your Civil Case
Every prosecutor on earth frames their job as fighting for victims, and in their way they do. However, since criminal law and civil law are separate areas, prosecutors really mean they're fighting for victims within the realm of criminal law. Any civil lawsuits aren't really in their wheelhouse.
I don't want it to come off sounding like I'm diminishing the work that prosecutors do. When it comes to drunk driving, I'm on team "lock them up," which is what prosecutors do. At the same time, I'm also on team "make the bad guys pay." From my experience working with victims, their main goal is almost always to ensure maximum accountability in whatever form that takes. If it means ensuring a drunk driver goes to jail, they want that. At the same time, they also want anyone who broke the law in the lead-up to the crash to answer for their actions, too.
Victims don't want to see another family go through what they went through just because no one bothered to make sure a bar isn't dumping drunks on the roads at last call. While the legal system has generally become more sympathetic to victims over the last couple of decades, many still find it frustrating to learn that it's not just wrong-doers throwing up roadblocks to their quest for accountability, but often, even the prosecutors who are on their side.
I don't mean for any of this to come off as sounding bleak. I've been able to hold numerous bars accountable for their actions, even when I hear crickets from the prosecutor pursuing the drunk driving charge. But in almost every case, I have to prepare my clients for the fact that even though it would make sense for the prosecutor to be my best friend, my clients aren't likely to get too much help with their case from him.