Lawyers Manual - Unified Court System

302 Betty Levinson
alleging intentional inflictions of emotional distress. 26 Thus, if diversity or
other federal jurisdiction is available, the possibility of proceeding in a federal
forum ought to be considered.
Criminal Proceedings
A conviction in a criminal proceeding will support a motion for summary
judgment in a civil damage action, leaving only the issue of damages to be tried.
However, if the victim pursues a criminal action against her abuser, she may find
herself in the awkward position of being counseled by the District Attorney’s
office to refrain from bringing a civil action in order to preclude crossexamination
from the defendant’s attorney about anticipated financial gain. 27
Disclosure
Anything a plaintiff writes about her experiences with her abuser may
constitute discoverable material. Thus, if a client wishes to pursue a suit, she
must be prepared to surrender to adverse counsel any diary she may be keeping
that records the events in question.
Expert Testimony
The testimony of a mental health expert is essential to proving damages.
Consider carefully the option of retaining a forensic psychiatrist to complement
the testimony of the treating psychotherapist, who may be reluctant to testify.
Medical Records
Battered women often provide doctors with “cover stories” about the source
of their injuries. Medical records should be obtained at the earliest opportunity
to determine their contents. Be aware of some hospitals’ policy to “flag” patient
charts that have been requested by lawyers. If possible, make immediate contact
with supervisory personnel having custody of the records, in order to avoid
delays in processing.
Theories of Tort Recovery Recognized in Other Jurisdictions
New York is not a jurisdiction particularly hospitable to the expansive
development of tort remedies. 28 Theories that have gained success in other
jurisdictions have not been recognized here. For example, domestic violence has
been characterized as a continuing tort in Idaho 29 and New Jersey. 30