The Oklahoma Bar Journal January 2024

L itigation & T rial P ractice

Take Five, But Civilly: A Civil Litigator’s Primer on the Fifth Amendment By Andrew J. Hofland and Justin A. Lollman

F OR MANY CIVIL PRACTITIONERS, the world of criminal law can be strange and intimidating. Different rules, different issues, different clients, different stakes. But even for litigators with an entirely civil practice, criminal law issues can and do arise. Nowhere is this more common than with issues concerning the Fifth Amendment. So what are you, the civil practitioner, supposed to do when in the lead-up to your client’s deposi tion, you realize the responses to the other side’s questions might incriminate your client? How does your client invoke the privilege? What are the pros and cons of doing so? Who decides whether your client’s invocation of the privilege is justified? What standard applies in making that determination? And what are the potential strategies for navigating these issues while minimizing the potential risk for your client, both civilly and criminally?

danger from a direct answer” – irrespective of whether criminal charges are pending – a person can invoke the Fifth. 4 WHEN AND HOW DOES A WITNESS INVOKE THE PRIVILEGE IN A CIVIL CASE? Unlike in a criminal con text, where a person may make a blanket assertion, in a civil context, the Fifth Amendment privilege must be invoked on a question-by-question basis. 5 In addition to avoiding potentially incriminating statements at trial or deposition, the privilege is also routinely invoked earlier in civil

may “be asserted in any proceed ing, civil or criminal, adminis trative or judicial, investigatory or adjudicatory.” 2 This is, in part, because the privilege “not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which could furnish a link in the chain of evidence needed to prosecute the claimant for a crime.” 3 Otherwise, compelled testimony, regardless of the forum, would let the genie out of the bottle, leaving the witness exposed to future criminal prose cution. So whenever “the witness has reasonable cause to apprehend

This article aims to answer these and other frequently asked Fifth Amendment questions, pro viding civil litigators with a brief primer on the Fifth Amendment privilege and the rules governing its invocation in civil cases. DOES THE FIFTH AMENDMENT APPLY IN CIVIL CASES? Yes. Although the Fifth Amendment to the U.S. Constitution states, “No person … shall be compelled in any criminal case to be a witness against himself,” 1 the Supreme Court has held that the right against self-incrimination

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

10 | JANUARY 2024

THE OKLAHOMA BAR JOURNAL