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Birmingham Bar Association Bulletin | Winter 2014

Legislation Continued from page 14 Recent Legislative Changes Affecting Court Procedures Protection Threatened “To sustain a moving party’s Fifth Amendment right against self-incrimination, ‘it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation why it cannot be answered might be dangerous because injurious disclosure could result.’”11 Most of the time, it would normally involve waiting out a statute of limitation; however, in cases of theft by deception (or, in the civil world, sneaky conversion), merely mentioning the Fifth Amendment right may cause another party to start actively looking for potential deceptive behaviors. This is yet another consideration for counsel in deciding whether to raise the Fifth Amendment, whether by assertion of the privilege or requesting a stay or protective order. Balancing Test The final issue that must be addressed is the balancing tests set out in Ex parte Baugh12 and Ex parte Ebbers.13 In Ex parte Baugh, our Supreme Court first balanced the exercising of the Fifth Amendment right against the potential prejudice to the other party in granting a stay.14 Although recognizing that “statecourt procedural considerations must at all times yield, however, to relevant federal constitutional rights,”15 the Court also noted that “the scales of justice would hardly remain equal in these respects, if a party can assert a claim against another and then be able to block all discovery attempts against him by asserting a Fifth Amendment privilege to any interrogation whatsoever upon his claim. If any prejudice is to come from such a situation, it must, as a matter of basic fairness in the purposes and concepts on which the right of litigation rests, be to the party asserting the claim and not to the one who has been subjected to its assertion. It is the former who has made the election to create an imbalance in the pans of the scales.”16 In Ex parte Ebbers,17 our Supreme Court provided an extensive restatement of the law in Alabama regarding the ability of a party to stay a civil proceeding on Fifth Amendment grounds. The Court said it will consider the following factors (derived from Federal cases): 1.  The interest of the plaintiff in proceeding expeditiously with the civil litigation, or any particular aspect of it, and the potential prejudice to the plaintiff of a delay in the progress of that litigation. 2.  The private interest of the defendant and the burden that any particular aspect of the proceedings may impose on the defendant. 3.  The extent to which the defendant’s Fifth Amendment rights are implicated/ the extent to which the issues in the criminal case overlap those in the civil case. 4.  The convenience of the court in the management of its cases, and the efficient use of judicial resources. 5.  The interest of persons not parties to the civil litigation. 6.  The interest of the public in the pending civil and criminal litigation. 7.  The status of the criminal case, including whether the party moving for the stay has been indicted; and 8.  The timing of the motion to stay.18 Conclusion One strategic decision available to litigants concerning the Fifth Amendment privilege is to request a stay of civil proceedings until criminal proceedings can be concluded. A successful stay (or protective order for discovery) will avoid a party having to assert his or her Fifth Amendment privilege against self-incrimination and suffer the adverse inference that can occur in a civil case. An unsuccessful stay will provide grounds for an appeal in the event of an adverse ruling in the event you also have an adverse judgment. G (Endnotes) 1 Ex parte Rawls, 953 So. 2d 374 (Ala. 2006). 2 Ex parte Baugh, 530 So. 2d 238, 244 (Ala. 1988). 3 Ex parte Ebbers, 871 So. 2d 776, 789 (Ala. 2003). 4 Ex parte Flynn, 991 So. 2d 1247 (Ala. 2008). 5 Flynn, 991 So. 2d at 1253. 6 Rawls, 953 So.2d at 380-81 (“a divorce action in which there are allegations of abuse, harassment, threats, and intimidation and a felony stalking charge could not be more parallel.”). 7 Ex parte Costal Training Institute, 583 So. 2d at 981 (Ala. 1991) (indictment not required). 8 Ebbers, 871 So. 2d at 785, citing Ex parte Coastal Training Institute, 583 So. 2d 979 (Ala. 1991). 9 Ebbers, 871 So. 2d at 787. 10 §15-3-1, Ala. Code (2014 Supp.). 11 Rawls, 953 So. 2d at 381, quoting Baugh, 530 So. 2d at 241. 12 Ex parte Baugh, 530 So. 2d 238, 244 (Ala. 1988). 13 Ex parte Ebbers, 871 So. 2d 776, 789 (Ala. 2003). 14 Rawls, 953 So. 2d at 384-85; Ex parte Baugh, 530 So. 2d at 245. 15 Ebbers, 871 So. 2d at 242. 16 Ebbers, 871 So. 2d at 245. 17 Ex parte Ebbers, 871 So. 2d 776 (Ala. 2003). 18 Ex parte Ebbers, 871 So. 2d at 789-90 (Ala. 2003) (citations omitted). Birmingham Bar Bulletin/ Winter 2014 37


Birmingham Bar Association Bulletin | Winter 2014
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