Realities of Litigation
Many victim survivors of sexual abuse have turned to legal action in both criminal and civil courts. While some have received a degree of satisfaction pursuing this route, many have been left disappointed and frustrated. In the U.S. legal system, the victim survivor plays a minimal role. Sexual abuse is viewed as a crime against the state, even though it happened to a person. In a criminal proceeding, the offender may be given a prison sentence. Many victims feel re-victimized in a court setting, in which their credibility and motives are questioned. Even when a civil lawsuit is won by a victim the compensation is generally only financial.Understanding Lawsuits: The Real Story
Litigation is one option for addressing the “unrightable” wrong of clergy sexual abuse. Pursuing a lawsuit against the Church may or may not be right for plaintiffs. Whatever choice is make, there should be full information about the process and range of outcomes a client can expect to achieve. How do lawsuits really work?A lawsuit is a process to determine the existence of rights, whether those rights have been violated, and if so, what should be done about the violation. The court system is divided into a criminal side and a civil side. In addition, the court system is divided into the state courts and the federal courts. Most clergy abuse lawsuits are filed in state court.
Time Limits
Civil lawsuits are started when an injured person files and serves a complaint for damages against the person who caused the injury. For public policy reasons, injured people have a limited amount of time within which to file their claims. These statutes of limitation prevent very old claims from being pursued. “Very old” is a relative term because in some types of cases, the injured party only has ninety days to file the lawsuit. Usually, statutes of limitations are measured in years. Many clergy sexual abuse cases are dismissed because the abuse occurred long ago and the statute of limitations has run out. In these cases, the survivor victim’s claim is time-barred and cannot go to trial.The only way a defendant-- the person or entity being sued--can respond to the action is by challenging its legal merit or filing a legal paper denying liability. Thus, if a victim-survivor retains a lawyer or joins a group of other victim-survivors, he or she can expect that the clergy charged with the offense and his diocesan superiors will first try to challenge the lawsuit by saying it has no merit. If that does not succeed, they will unequivocally deny that the person was abused, that the clergy was the abuser, or that the diocese had anything to with any injury the victim suffered. Every case is handled this way, even when the defendant is as guilty as can be.
The case will take a long time to work through the courts. Court congestion is a common, expected problem, and trial delays are measured in years in many states. While awaiting a trial date, plaintiffs will be expected to answer written questions about their injuries. In addition, your deposition will be taken.
Depositions
A deposition is an oral interrogation under oath. It can be a highly intrusive, embarrassing process because the attorney for the clergy and diocese will ask about every nuance of the abuse that was suffered. The plaintiff may be asked to describe in the minutest detail every act of abuse, when it occurred, where it occurred, and whether others were present. The questions may imply or suggest that the plaintiff initiated the conduct. The questions will seek to discredit the victim, to find inconsistencies, and to make the plaintiff feel incompetent. This, sadly, is normal in civil litigation. A strong likelihood exists that the survivor victim will be re-victimized through this process, and those who brings a case must be prepared to subject themselves to it.Mediation
At some point in time, the lawyer may tell the client that the case is going to be mediated. In essence, traditional mediation is a structured negotiation between the plaintiff and the diocese (and the diocese’s insurance company if one exists). The lawyers for both sides handle the negotiation and the discussion is only about how much the case is worth in dollars. The strengths and weaknesses of the case for both sides are evaluated by the mediator, who works with the lawyers to come up with an acceptable settlement amount.In most instances, the plaintiff will not receive an apology or an acknowledgement that any abuse occurred. Nor will there be opportunity to talk with the diocesan superior and explain what the suffering was like. The plaintiff will not be engaged in any meaningful dialogue about what happened in his or her life except as it might pertain to money. In many cases, the diocese will insist on confidentiality, which means the plaintiff cannot even talk about the settlement to the media or friends.
What Happens If There is a Trial?
If the case proceeds to trial, recognize that the judge and jury can only do three things: issue a judgment for money; issue a coercive order (called an injunction), or declare what the rights of the parties are.In most clergy abuse cases, the court will only issue a judgment for money. The court will not vindicate the plaintiff, acknowledge he or she was victimized in a horrible way, apologize for the diocese, or otherwise see that the survivor victim receives a sense of justice. The only vindication, with a win, will be a sterile legal document saying the diocese owes the plaintiff some money. Of course, the diocese can and will appeal the judgment to an appellate court, which will add several more years of uncertainty and cost to the process.
It would seem that the clergy person and the diocese will be on trial. Actually, the person asserting abuse will be center of attention and in the spotlight. The defense lawyers will do everything possible to make the plaintiff look like a liar, a cheat, a fraud, and otherwise disreputable, not believable, and anti-religious. That is their job in a civil case.
Lawyers cannot protect clients from the stances taken by a diocese. The clergy and the diocese will be portrayed as pillars of rectitude in the community. A lawyer will have his or her opportunity to discredit them, but will typically face an uphill challenge convincing a jury of the abuse. People just don’t want to believe that abuse happened in their community and in their parishes.
Recovery amounts will obviously vary depending the nature of the case and the number of survivor victims claiming damages. In addition, the amount of the settlement and the particular attorney’s fee agreement will affect significant reductions in the money an individual plaintiff actually recovers. In general, members of a group or class action can expect to receive a check for less than 1 percent of the total settlement. This recovery will typically not change a client's life, permit retirement, or buy the client a new home.
Victim survivors and their supporters should question prospective lawyers wishing to represent them very carefully about fees, costs, length of time, time that will have to be committed personally to answering questions (written questions and depositions), distribution formulas, and the tax consequences of recovering money from the case.
Although litigation is an option, many victim-survivors are finding that the justice they seek is not being obtained in the courts. They have to make the decision whether litigation is the right road for them. They must ask the lawyers the tough questions so they will understand exactly what to expect.
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