Recovering damages for undocumented workers

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As the number of undocumented workers rises, personal injury attorneys are increasingly struggling with how to handle illegal immigrants as clients.

In January 2010, the Department of Homeland Security estimated that 10.8 million undocumented individuals resided in the United States.

“Immigration is a hot button issue and there is a lot of hostility about undocumented workers in America,” said Philip Harnett Corboy, Jr., a partner at Corboy & Demetrio in Chicago. “Jurors unfortunately come with a lot of biases against undocumented workers and as a result, they don’t get the same consideration when it comes to the amount of money awarded in damages as would an American worker asking for the same amount of money damages for the same injuries.”

When representing an undocumented worker, Corboy tries to take the issue of immigration status completely off the table.

He can do this under Illinois law by choosing not to make a claim for future lost wages. When an undocumented worker doesn’t request future lost wages in Illinois, his or her immigration status isn’t introduced at trial, Corboy explained. He said this is the majority rule.

“It’s a trade-off,” Corboy admitted. But he argued that the loss of one type of damages outweighs the “immeasurable damage” the introduction of a plaintiff’s status would have.

“We in the plaintiffs’ bar are very cognizant of the fact that if a jury does find out that a plaintiff is undocumented the damages will be driven down on an arbitrary basis,” Corboy said. “It’s just the way America is at this particular moment.”

Ronald V. Miller, Jr., a partner at Miller & Zois in Baltimore, agreed.

The loss in damages is generally minimal, because the majority of undocumented workers isn’t highly paid and lack documentation for their income.

“Lost wages are often nonexistent,” said Miller.

A person’s immigration status is irrelevant when awarding damages for medical treatment, pain and suffering and emotional distress, he noted.

Bad dreams

Corboy’s strategy paid off in a recent case where the firm received a $22.5 million settlement for a married couple, both illegal immigrants.

The couple was in their car, waiting for a train to pass, when 18 cars containing ethanol derailed, resulting in a massive explosion.

The fire ball engulfed the plaintiffs’ car, immolating the wife and seriously injuring the husband.
The plaintiffs plead a negligence case, Corboy said.

Illinois law “doesn’t require information to be provided about citizenship unless there is a claim for future lost wages,” he said. “And in this particular case, we decided early on in the litigation not to seek future lost wages … for either our client or his deceased wife.”

Robert J. Bingle, a managing partner at Corboy’s firm, also represented the plaintiffs. He was “delighted” that the case settled.

“As well as you might try to ferret out prejudices there could always be some inveterate biases on a jury that could be a factor in damage awards,” he said.

But even with the illegal immigration issue off the table on the front end, the attorneys had to fight to keep the plaintiffs’ status out of evidence.

The defendants, including the railway company operating the cars and the operators of the track, sought to have a psychiatric exam included as part of the independent medical exam of the husband.

During that exam, the psychiatrist asked about the husband’s dreams.

He replied by speaking about his continuing nightmares reliving his swim across the Rio Grande in order to enter the United States.

Corboy, who was present in another room but could hear the exam, called an immediate halt to the process and got opposing counsel and the trial judge on the phone.

“Any juror with a sense of geography or history would realize immediately what that meant about the background of [my client],” he said.

Given that the plaintiff had not made a claim for future lost wages, Corboy argued that the discussion of his dreams was irrelevant.

The court agreed. The trial judge ordered the psychiatrist to halt the dream line of inquiry and ruled that the plaintiff’s answers would be excluded from evidence at trial.

Immigration status can affect recovery in other ways. Some defense attorneys will try to use that status to reduce the amount of an award.

Kristin L. Olson, a partner at Bullivant Houser Bailey in Portland, Ore., said she doesn’t contest a plaintiff’s right to sue or receive damages, but argues that earnings should be received in the currency of the plaintiff’s home country.

“The argument is that he or she is working unlawfully and the legal system should not condone breaking the law,” Olson said.

Case law in Oregon and in several other jurisdictions, including California, Florida, Kansas and New York, supports the position that immigration status is relevant to future earnings, she said.

To provide jurors with a dollar amount, she hires an economist to testify about a comparable position in the plaintiff’s home country and how much an individual holding that job would earn.

Olson then submits the exchange rate on the date of the verdict to convert a jury’s dollar award into pesos, for example.

Privacy concerns

Corboy said that issues in working with undocumented clients aren’t limited to damages.

Many clients are afraid of being “outed” as illegal immigrants in the courtroom.

They tend to be “very private and are concerned about exposing themselves to the public by taking their case to trial,” Corboy said, fearful of arrest by bailiffs or officers of the court.

“A lot of times as a plaintiffs’ attorney you will settle a case you might not ordinarily want to, but your client doesn’t want to go through with a trial,” he said.

Corboy recalled several undocumented clients who opted to avoid court and settle even after he told them he thought they could get more money at trial.

Having an undocumented client “certainly puts the defense in a stronger position,” he said.

Language barriers can also be a concern, because undocumented workers often don’t speak English or are far more comfortable in their native language, Corboy noted.

At trial, this often necessitates the additional expense of an interpreter for the plaintiff as well as witnesses, Bingle said.

Corboy’s firm has two Spanish-speaking employees who can help with discussions when a client comes into the office, but for formal settings like a deposition or at trial he prefers to use a professional translator.

Most translators take time before testimony begins to chat with the client and see if there are any issues, such as differences in dialect, which can impact the client’s comfort level.

This preparation generally leads to “a more complete sentence or paragraph than a one-word answer,” which can be a huge benefit in situations where an incorrectly answered question can affect the dynamics of the entire case, Corboy said.