Men whipsawing lumber for boat building, Yukon Valley, ca. 1896
It is not often that civil litigators get tangled up in the Fifth Amendment right against self-incrimination. They are, after all, CIVIL litigators and many of them went that route due to a lack of passion or interest in anything criminal.
Having said that, civil litigators must have proper knowledge of and respect for the Fifth Amendment, an appreciation of the potential consequences of invoking it in civil litigation, and also how far one can go before losing the right altogether.
Waiver came up for a paver the other day (in the case that was also the subject of yesterday’s Minnesota Litigator post).
Photo by Jonathan Rotondo-McCord
Your client could get whip-sawed if he invokes the Fifth Amendment in civil litigation (thereby triggering the adverse inference which is permitted in civil cases) but, because he does so selectively, he is then stripped of it (thereby defeating any possible benefit the invocation could conceivably have afforded him).