LawyersUSA has an article out today on the struggles that personal injury attorneys have had in getting fair compensation for their clients in accident and malpractice cases. The article contains a few quotes from me.
There are a couple of leitmotifs lawyers deal with when representing injured people who are either illegal immigrants or appear to be. First, if they are legally here in this country, get that out on direct. There are some jurors who – let’s face it – will view anyone with an accent as an illegal immigrant. In the real world, there is a prejudice against illegal immigrants. If you can kill that perception, do it.
Conversely, you need to move in limine to bar any evidence, suggestion, or argument regarding the immigration status of plaintiff (or any witness, for that matter) because it is prejudicial. Put in front of a jury that the plaintiff is legally working in this country, yet suppress any mention of immigration status if the plaintiff is undocumented? Is firing off these two seemly contradictory statements in seconds lawyer double talk or even duplicitous. Actually, it is not. Juries don’t say “Gee, we have a documented immigrant, let’s open up the checkbook” but they might discriminate against a plaintiff because they don’t think he/she belongs in this country. Doors don’t always swing both ways.
The trickier issue is lost wages. Past lost wages? I think you have to write them off. Even if you can get them in- unlikely – I think you risk inflaming a jury on cross-examination. No one playing by the rules and paying their taxes wants to compensate someone who does not pay their taxes. This is not just true for illegal immigrants. I have had scores of clients who claim to be working but have no lost wages. Fairly or unfairly – probably fairly – you live by the sword, you die by the sword (or something like that).
Future lost wages are a different story. An undocumented worker may obtain legal status or may return to his home country or even another country. You can’t say that an illegal immigrant will never be able to earn wages in the future, particularly in wrongful death cases. And there is no law anywhere to my knowledge suggesting that the Immigration Reform and Control Act of 1986 prohibits the employment of illegal aliens preempt state tort claims for future lost earnings.
On these questions, the trial judge will have great latitude in making the call. I think it is important to figure out where the judge is on these issues early. Would the judge exclude immigration status unless lost wages are at issue? Once you know how the court will rule under different scenarios, you can figure out the best trial strategy for that case.
One practice point for wrongful death cases in particular: how does the defendant know that the decedent was undocumented. It is a difficult negative to prove for defense lawyers.
Cases worth reading on whether the fact that a worker is undocumented should be admissible in injury claims:
- Balbuena v. IDR Realty, 845 N.E.2d 1246, 1251 (N.Y. 2006) (granting undocumented worker’s claim for lost wages in workers’ comp case but has good language and arguments for defense lawyers in dissent)
- Madeira v. Affordable Housing Foundation, Inc., 469 F.3d 219, 248 (2d Cir. 2006) (no basis for that immigratin concluding Congress intended to preempt state law allowing compensation of lost earnings in personal injury lawsuits… but another case with language for plaintiffs and defendants)
- Baylor Law Review article on claims by illegal aliens. Pay particular attention to ABC Rendering v. Covarrubias, 1972 Tex. App. Lexis 2794 (TX, 1972) which is discussed in the article.
- A good article from an economics journal on future lost earning capacity of undocumented workers.