Bar News - August 16, 2017
Workers’ Compensation and Personal Injury Law: How to Handle Civil Sex Abuse Cases Against Institutional Defendants
By: Peter E. Hutchins
Over the past 15 years, I have had the privilege of handling over 350 individual civil sexual abuse claims against large institutions, beginning with the clergy abuse cases in 2002 and most recently against New Hampshire private prep and boarding schools.
It has been challenging and rewarding work complicated by the raw emotions involved on both sides. This emotional component combined with the very public nature of the institutional scandals make prosecuting these cases far more difficult and complex than the typical injury-related tort case. Below are some of the lessons I’ve learned for the effective handling of these claims.
Representing the Victim. The victim plaintiffs in these cases are often severely emotionally damaged. Some have never disclosed the abuse to anyone; others have perhaps endured grueling and frustrating criminal or administrative investigations of the perpetrators. Some are very angry and want vengeance; others are wrought with guilt and embarrassment. Most are searching for support and some level of closure. Some have sought counseling and treatment; others have not.
These underlying emotional components make representing sexual abuse victims very challenging. The lawyer must strike that balance between providing the client with the emotional support and guidance they need with the more clinical task of effectively prosecuting and concluding the civil claim. Unfortunately, there is no magic blueprint to follow – the cases are all different, the client’s needs are individual, and striking the professional balance comes with experience and patience.
Know the Law. The latest version of my civil complaint (a prep school case) was over 200 paragraphs and featured 10 separate legal counts. The legal theories range from negligent failure to protect/warn, to breach of fiduciary duty, to claims based in contract. Certain cases may implicate federal civil rights statutes. In order to properly investigate, organize and present your claims, in-depth knowledge of the legal claims involved is essential. It is not as simple as copying a model complaint or reading a couple cases (which is why I do not share my model complaints). You can rest assured that the attorneys representing the institutional defendants (typically from the largest law firms from New Hampshire or Boston) know this law inside and out.
Know the Facts. In the prep school cases, the client is typically highly intelligent and well educated. These clients generally can recite in great detail the history of the abusive relationships, usually with school faculty or staff. I always ask my client to write a chronological history and summary of the abuse. It is cathartic for the client and provides the lawyer with an organized and detailed description of the operative factual allegations in the case. In addition, unless the lawyer attended the defendant school, the client will have an in-depth knowledge of the workings and culture of the subject institution – an insight that will prove invaluable.
Investigate your Opposition. In addition to the information provided by your client, spend significant time researching the target institution and the perpetrator. If investigations have been made public, as in the case of recent revelations involving several New Hampshire private schools, obtain that information and identify the components of these disclosures that relate to your client’s individual case. Also, research the background of the perpetrator to the extent possible.
Often, obtaining information on individual faculty or staff perpetrators is difficult, and I have found engaging the services of a professional investigator to be a wise investment of resources. For example, during the New Hampshire clergy cases from 2002-2004, I hired a full-time investigator for three years and paid for his services from my own pocket. The assistance provided was invaluable and turned up several crucial “smoking guns,” which led to very successful case settlements.
Try the Cooperative Approach First. More often than not (perhaps as the result of prior damaging litigation or criminal prosecutions), institutions recognize their exposure and are open to establishing and following a case resolution process in order to avoid public litigation and further damage to the institution/school. This is particularly true if defense counsel know that you are well prepared and have done all the research and homework described above.
I have worked hard to develop a reputation of being willing to work with an institution – not to destroy or hurt it, but rather to jointly find a way to properly compensate the client without causing collateral damage to the innocent faculty, administrators, trustees, students and alumni. These institutions do a lot of good for a lot of people. Stay focused on the targets who were guilty of the abuse and cover-ups, and use the law and the compelling nature of your client’s ordeal to craft a fair resolution – all the time making the defendant and its lawyers aware that you are ready and willing to pursue hard ball litigation if necessary. Bullets in the chamber are much more valuable than bullets that are fired and miss the target.
Your Client is Your Partner. To complete the circle, it is important to keep your client involved and make them understand that you are working together to achieve justice and closure for them. Your client is not only your most valuable investigatory asset, but is the person who is relying on you to help them through perhaps the most difficult time of their life.
Temper their expectations, but fight for their interests in the manner that will most likely maximize both their financial recovery and their personal ability to move forward with their lives.
Fifteen years ago, those of us handling these cases were challenged to basically “invent the wheel” during a public and institutional scandal that seemed overwhelming. The defendants initially fought very hard, and it required an incredible expenditure of time and resources to demonstrate to these institutions that they faced real and harsh consequences and exposure if the cases were decided by a jury.
As a result of this hard work years ago, many institutions now understand that it is better for them to cooperate with legitimate and credible victims to seek a fair settlement of these individual cases. The work is as hard as it is rewarding, and as emotionally exhausting as it is physically demanding. So long as the practitioner keeps his or her eye on the ball, i.e., achieve justice and closure for the client above all else, he or she will have met professional obligations and perhaps have helped further public and institutional awareness of the critical importance of protecting children placed in the care and control of employees of these institutions.
Peter E. Hutchins of Peter E. Hutchins LLC, in Manchester, is Treasurer of the NH Bar Association and a past president of the NH Bar Association.