Can You Win in Court if the Defendant's in Prison?

By Susan M. Brazas, Attorney

You've heard of "jailhouse lawyers," but what about "jailhouse defendants"? By definition someone in jail is already convicted of a crime she already committed. But, what happens if another lawsuit is filed?

Bernie Madoff, in jail for financial fraud in the form of a Ponzi scheme, continues having lawsuits filed against him even though he's already serving a sentence. What are his newer accusers up against?

A Jail Sentence Makes Suing Harder

All states have certain deadlines for filing suits. These deadlines range from one year to ten or even 20 years, depending on the type of suit. However, many things can happen in the meantime. One event is the person you're planning to sue may be convicted of a crime and end up in jail. This can have various effects on how your suit proceeds.

She might be frequently transferred to different facilities, requiring changes in venue, meaning different judges and jury pools. Also, unless the person is on work release, she's likely earning little income while in jail. So the chances of recovering money may be low.

Suits Can Be Filed against an Estate

Another event that can happen is that the person you're suing might die before the suit comes to trial or during the trial. Although this doesn't necessarily mean the suit will stop or can't be filed, it can make the process trickier.

Consult a lawyer immediately if you learn that the person you want to sue has died. The lawyer will immediately investigate whether a probate court case has been filed. If so, the lawyer will likely file a claim on your behalf in that court case, to notify the estate that you have a claim against the assets of the deceased.

There is a very short window of time in which to make such claims, so it's critical to promptly seek the help of a lawyer if you aren't working with one at that time. Select one in the area where the person lived when she died.

For people who died in jail, the probate court case might be in the county where the prison is located, or where she lived before going to prison.

Is a Suit Feasible?

If you were hurt in a car accident, and another driver caused the accident and was ticketed, it will be very helpful to your case if the other driver was found guilty of the traffic charge. Most larger court systems have online case information where you can check to see whether the person was found guilty.

The fact the other person was found guilty or pleaded guilty is an important positive factor in your case. If you're suing for your injuries, the judge or jury will know that the other person was found guilty of another crime. This will greatly improve the chances that the person will found responsible for your injuries.

A lawyer will help you decide whether it will be worthwhile to sue someone who has been convicted of a crime. Among the factors the lawyer will consider are:

  • Whether and for how long the person is in jail
  • Whether the person is employed or has other income or assets
  • If the person has died, whether she left enough assets to make it likely that you'll collect money for your injuries

Trying to sue someone in jail could mean standing in line after others whose claims may or may not be more substantial have been dealt with, and the process may take a while. It's certainly not something to do lightly.

Questions for Your Attorney

  • Can I sue someone who is in jail? What if they died in jail?
  • If someone is in jail, do they have enough money to satisfy my judgment?
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