Picking an Attorney – Part Quattro (4)

I, Keri Potts, have a legal team in Milan. Holy. Cow.

I had fired my arsenal of money questions at the firm I intended to hire, and eagerly awaited a response. I imagined all manner of possible answers and was preparing myself for disappointment. Instead of an immediate response on the fee, I received additional information about the Italian legal system, my first such inklings of what was ahead of me. I have bolded parts I found most interesting.

“1.    As I told you in a previous mail, the rule is that the investigations are covered by secret, so all the infos we can obtain are “informal”;

2.    According to article 609 bis Italian criminal code (“Codice Penale”), the sexual assault is a serious crime which carries to a penalty from a minimum of 5 years of prison up to a maximum of ten. In minor cases of sexual assault  the penalty  can be under five years, and be reduced to maximum of  to 2/3 beginning from 5 years;

3.    In relation to your questions about the possibility that Marco remains in jail until the beginning of the trial, I must tell you that the Public Prosecutor and the judge can order different kind of restriction on Marco’s personal freedom:  from jail (the most severe measure) to the prohibition lo leave the city of Rome. The choice depends from the evaluation of your case and from an evaluation of Marco’s personality;

4.    The length of these measures goes from a minimum of 1 day up to 1 year. The issue of the length of the measures according to Italian law, belive me, is very complex. What I can tell you is that in New York you are safe. In Italy bail system does not exist;

5.    At the end of the investigation the Public Prosecutor can decide to summon Marco or to discharge him (not likelihood in your case);

6.    If Marco is summoned, according to the Italian system you can demand the restore of the damages during the criminal proceeding (this is not possible, I think, in common law system). It’s called “costituzione di parte civile”;

7.    Consider that during the investigation and until the first hearing of the (future) trial, Marco has the possibility to plea bargain;

8.    Both in case of trial or in case of plea bargain, the judge will order to Marco to pay your the legal fees;

9.    Sorry, civil damage is the Italian expression which identifies the damages you can demand in front of a judge after you have suffered a tort (in your case the tort is also a crime). The restore includes economic damage and not economic damage (the healthcare costs, the moral pain and sufferings);

10. If you decide to begin a civil action in the criminal proceeding and at the end of the trial  and Marco is declared guilty, the judge has two options: he can quantify the damages and sentence and Marco to pay you back or he can state that Marco is guilty, you suffered damages but will be the civil judge to quantify the damages (this means that you have to begin a civil action in front of the civil judge after the criminal proceeding is over);

11. I cannot make a forecast of this quantification, because that depends from the economic condition of Marco and from the evaluation that the Public Prosecutor will do of the degree of gravity of your case;

12. The Italian law gives to his attorney the possibility to interrogate the people who can report something about the crime Marco is investigated (potential witnesses); I cannot exclude that he can ask you to be interviewed, but it doesn’t seem very reasonable: he has to fly to New York, in order to listen someone (you) who can only confirm what has happened in Rome.

13. In Italy the defensive strategy in this kind of cases is normally a plea of bargaining, the attorney of an attacker decides to go in front of the court only if he has real and solid chances.”   

Clearly, this was a lot to absorb. Without a bail system, I knew it was likely Marco would not be sitting in a jail cell awaiting the results of the investigation. I was encouraged by the thought Marco might have to pay my legal fees. And I was not clear on how or why the courts would allow for civil damages to be awarded before or during the criminal trial or why, if I did make such a request, a judge would decide I’d have to pursue civil damages in a separate trial.  

A few days after receiving this information, the firm in questions asked me to name my fee. I offered a US $5000 flat rate per year, with the conditions that I’d be notified once we hit that amount and be given approval over costs exceeding that standard. The firm agreed, and there I was, with a legal team in Milan. No, I did not feel sophisticated or worldly. The whole affair felt surreal.

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