McGroder has a wealth of knowledge about the interplay between personal injury law and criminal law. Early in his law career, for approximately four years, he worked for the Maricopa County Public Defender’s Office, representing clients in more than 350 felony matters. While in law school, he spent two years prosecuting felony cases at the Maricopa County Attorney’s Office.
In this interview, McGroder and Negretti & Associates Principal Jonathan Negretti explore how personal injury attorneys can work with criminal defense attorneys to achieve compensation for clients. McGroder also discusses the role of insurance in relation to victim compensation. Further, he offers his perspective on restitution.
Jonathan Negretti: Imagine that you get hit by someone who is cited for a DUI. Let’s just start with that premise. What do people need to know?
Patrick McGroder: It’s really important to get involved early with a criminal defense attorney. Criminal defendants have a wealth of information that personal injury attorneys can use in securing some sort of compensation for their clients.
The elephant in the room in every single personal injury case is whether there is insurance. We deal with cases where we walk into a hospital room with individuals who have suffered catastrophic injuries and there’s no insurance.
For example, with a DUI, a few quick issues come to mind. Where was this individual drinking? Where was this person before the incident? This can raise certain issues regarding dram-shop cases. No one knows best than this criminal defendant.
To take your example to a new level, imagine that the individual that gets hit and is killed — whether it’s a vehicular manslaughter case, where this particular defendant is now facing prison time. Here in Arizona, about maybe about 10 years ago, the state enacted the Victim’s of Bill of Rights, which gives certain rights to victims here in Arizona. That being said, a victim in this case has a right to be heard. Has a right to present. Has a right to go to all the court proceedings and then has a right to be heard regarding recommendation for prison sentence.
Manslaughter here in Arizona carries a term of 7 to 21 years. When the prosecutor reaches out to the victim, wanting a recommendation on sentencing, victim input is essential. What we do — and what I think everyone should do — is get involved with the criminal defense attorney. Pick up the phone and say, “I have an angry victim here who wants justice. If your client is willing to do the right thing, and help secure some sort of insurance compensation for our client, then maybe we can do something about victim’s recommendation.”
Not every case is a case where you can get involved. Some victims want blood. Some victims want the death penalty or want a client to go away forever. But I have found that, by picking up the phone and reaching out to criminal defense attorneys, these particular defendants have a wealth of information.
Negretti: Do you take your client’s temperature first before you reach out to the criminal defense attorney?
McGroder: You have to. It’s all about managing expectations, in any case — whether it’s criminal, whether it’s a family law case, whether it’s a personal injury case. You’ve got to be pretty up-front with your clients early. Set expectations. Don’t over promise. It’s a very delicate process, and you have to tread very lightly. Victims and victims’ families are very angry, and they want justice.
What does justice mean, though? To certain families, it means the defendant goes away forever. Other families may be establishing a college fund for a grandson, or the child of a parent who was killed as a result of someone’s negligence. Justice has a lot of different meanings.
Negretti: Do you find that defense attorneys are receptive to these phone calls?
McGroder: They should be. The experienced ones should be. A newer attorney, like myself, back at the public defender’s office, should have an open mind. If they don’t have an open mind, then you can be straightforward with them. Say, “Listen here. My victim is willing to at least potentially hear you out in what you have. Here’s how you can help. We need the receipt from the bar. We need your client’s credit card statements. We need your client’s insurance policy. What does the homeowners policy look like?”
Homeowners insurance is a really interesting segment of our law. The common misconception is that homeowners protects you from a storm, or if your house gets run into, or has some sort of damage. Yet, homeowners insurance also protects individuals for individual liability, for committing negligent acts.
For example, if you and I are wrestling, and I throw you down the stairs and you break your neck, then there might be a situation where my negligence caused your your injuries. My homeowners policy may, um, cover your injuries.
Obviously, the other elephant in the room is intentional acts. Almost every homeowners policy has an intentional acts exclusion. A lot of attorneys will pass on cases that have criminal elements. My thinking — my words of wisdom — is to take a second look at these cases. Try to get involved when the criminal defendant pleads to something other than an intentional act.
In an aggravated assault case, you may write in a factual basis what happened in the case at the time of plea agreement, where it says someone recklessly discharged the firearm, instead of intentionally. This way, when it comes to presenting the argument to the adjuster, you’re asking the adjuster to look at this as a negligence-based act. Look at this plea agreement. That can just help you with moving forward against what will inevitably be the insurance company. It helps you by getting involved early.
A lot of criminal cases have a shorter life span than civil cases. Here in Arizona, the Regional Court Center is a turn-and-burn type of program, where they get a complaint filed from the county attorneys, you get court within the month. You could potentially resolve that case in two months. So, it’s important that once your client steps in the door, and there’s an underlying criminal case, to check the Maricopa criminal dockets. See if there have been charges filed. See if the defense has retained an attorney. Reach out to them immediately.
Negretti: We talked a little bit earlier about victim’s rights. Talk to me about your opinion or your thoughts in restitution.
McGroder: Restitution is tough. It’s all about collectability. Let’s say that you have an individual who has significant insurance and you’re able to recover. You can’t double dip. So, when requesting restitution, it has to be something that the judge will approve in the criminal context — things that you haven’t been able to recover, such as additional property damage, that you didn’t get from the settlement. Whether or not there wasn’t enough insurance to cover lost wages, sometimes you can make that request.
I have a case right now where, an individual was struck by someone who was uninsured — no license, it wasn’t his car, and had zero insurance. My client’s million-dollar bills are just sitting there. We’re not going to try to get an order for this guy to pay a million dollars, because everyone knows we’re not recover from them. The catch is, it’s a vehicular crime with a felony attached to it. This individual gets placed on probation. There’s a specific court that handles probation for offenders who have high restitution. The court can supervise and make sure that the individual who caused the crash, that resulted in the client’s injuries, pays up. Some of the motivating factors are potentially extending probation — potentially incarceration, if there’s a willful nonpayment. But I’ve seen courts that come down on these criminal defendants and make sure that victims are compensated.
Negretti: I have one more question, about exclusions in policies. You talked about exclusions, or intentional acts, in homeowners policies. Can you talk just a second about exclusions for punitive damages in automobile polices? How do you deal when the insurance company is saying, “We don’t have to pay for punitive damages. We don’t care if our guy was drunk.”
McGroder: We haven’t come across that too much. But you know, when sending a demand out to an insurance company, we make sure to include a highlighted section about the gross punitive type negligence, in terms of what a jury will perceive this at trial and what would anger a jury. That this guy was a .3, and had prior DUI’s. We make sure to put it all in there and say, “This is your insured. You’re opening yourself up here, by putting this guy back on the street and insuring him.”