The right to remain silent and not testify at your own criminal trial is well known within the legal community and among the public. A defendant “taking the fifth” has been depicted in movies and television shows, and reported in real-life cases by the media.

Less understood is the impact of the Fifth Amendment privilege on civil litigation.But the issue does come up — particularly in civil litigation that is related in some way to criminal conduct. For example, there may be civil litigation where an employer has settled related criminal liability, but employees continue to have potential criminal exposure. Or, a company and its employees may be under criminal investigation while the company is a party in civil litigation that has not been stayed.With the increase in parallel proceedings and actions based on fraud and other white collar crimes, how to handle a company related witness invoking the Fifth Amendment is becoming increasingly important in civil trials.

Originally published in Law360 on May 5, 2015.