The explosion of #MeToo cases in the past few years has led to a measure of accountability for perpetrators of sexual assaults. Although the vast majority of these cases are resolved before a civil complaint is filed, any serious plaintiff’s attorney should be prepared, if necessary, to file a case and sue for judgment.
I had the honor of being part of the team that recently won a $10 million jury verdict in a rape case against two-time Academy Award winning writer and director Paul Haggis. This was the first case ever tried under New York City’s Sexual Violence Victim Protection Act. From this case and many other #MeToo cases in my firm’s practice, here are some tips on how to not only threaten a #MeToo case, but win it.
Crucify your customer
Applying to report sexual assault is very difficult. Even applying to a therapist, friend, or attorney is often an enormous challenge, and can take years or decades, if at all. This can be true for people of all races, ages, and cultures. These challenges are greatly magnified in the context of litigation. Litigation often involves extensive discovery of every aspect of a client’s life, physical and mental health, and sexual history. This may include one or more examinations by forensic experts on both sides, deposition, jury appearance, and unpleasant cross-examination. The customer needs to understand and be prepared for the process.
On the other hand, coming forward, standing up for oneself, and potentially holding the perpetrator to account can be empowering and even life affirming. The point is: prepare your customer initially for what’s to come.
Expect the unexpected
The allegations of sexual assault are personal and inflammatory. It may affect the defendant’s family, reputation, career, finances and even freedom. The potential defendant may react emotionally, impulsively, and aggressively. In my firm’s practice, I have seen defendants and their attorneys publicly announce a sexual assault survivor by name prior to filing a case; Prosecuting a survivor for willful infliction of emotional distress by submitting a disturbing settlement request; and attempting to turn routine settlement discussions into an allegation of criminal extortion, and going so far as to try to persuade a public prosecutor to prosecute a survivor to pursue her claim.
Some advice: Don’t be intimidated or deterred by outrageous defense tactics. Expect an ethically challenged attorney to record your conversations. If a defense attorney cannot be trusted, be prepared not to discuss a settlement at all except through a formal mediation process, or at least to have all settlement discussions in writing. And, above all, steer clear of any morally problematic lines: for example, never threaten publicity or turn to law enforcement if the perpetrator is not settled. It is perfectly acceptable to speak with reporters or the district attorney, but this activity should not be used as leverage in the civil settlement discussion.
The importance of treatment
Survivors may not seek treatment for many reasons, such as denial, shame, fear, self-blame, or pain from facing trauma. But treatment is important. First, most survivors need treatment. Health, including mental health, should always come before any legal case. Second, treatment records are important evidence of both liability (see Protest Evidence, IR) and damages. A well-documented treatment history can be critical to a mediator, defense attorney in the context of a settlement, or to a jury. Finally, even the most experienced lawyers do not have formal training in sexual trauma. Clients are more likely to disclose the details and extent of sexual abuse to an experienced therapist than to an attorney. Therapy can help the lawyer learn and analyze the facts of the case.
The importance of argument evidence
Previous consistent statements by one party are generally considered unacceptable hearsay when made by that party. However, in New York State and elsewhere, “evidence that a sexual assault victim immediately complained about the incident is accepted to bolster the allegation of assault.” “Whether a complaint is prompt enough to fall under the exception is not a matter of accuracy and depends on the facts of the particular case.” Even a delay of more than four years was deemed “quick”. Previous consistent statements may also be admissible on other grounds, for example to refute the defense’s claim of a recent fabrication motive.
It is of the utmost importance, long before a case is brought, to thoroughly investigate all possible evidence. This should include searching all of your client’s emails, texts, messages, and social media, preferably by a lawyer or vendor rather than the client themselves. It may include medical and treatment records. An anger investigation also involves interviewing everyone your client came into contact with after the assault, including witnesses to the anger and others who were not reported by your client about the assault. Only after reviewing this evidence can you make an informed decision about whether to accept a case, what settlement position to take, and whether or not to file a lawsuit.
Know your claims
This section deserves a column of its own, but in short, thoroughly research all possible legal claims. You may have federal, state or city claims. You may have claims that have been revived for a certain period of time and may expire on a certain date. You may have claims that have been fairly charged. Consult an experienced sexual assault attorney in your jurisdiction – nothing is worse than losing a claim, or worse, the statute of limitations.
The importance of journalism
It’s hard enough for a survivor to file a lawsuit, but it’s even harder when it’s in a very public lawsuit. Many survivors do not want to be known as a survivor of sexual assault. However, public interest in a case can lead other survivors to learn about the case and come forward to report it, which can be a very important clue. I have never encountered a perpetrator who assaulted “only” one person. Most of them assaulted many people. But as the plaintiff’s attorney, how are you supposed to know the identity of the other survivors? Detection is a powerful tool, but the rapist’s honesty cannot necessarily be relied upon to reveal all the people he has attacked. But the press draws public attention to this issue. When survivors realize they are not the only ones, and when they see someone brave enough to hold the perpetrator to account in court, they sometimes come forward too.
The importance of other survivors
Why does this matter? First, other survivors can provide psychological support and comfort to your client. Second, other survivors may have acceptable testimony. Evidence of past sexual misconduct is admissible under the well-established “exception of intent” to the general rule forbidding past misconduct. “(P) Evidence of intent can often only be obtained by evidence of successive repetition of the act.” Evidence of intent is particularly critical, as is often the case, when the defense raises a consent defense, because prior misdeeds “reduce the likelihood of (the defendant’s) innocent intent on the specific occasion in question”.
If you have several credible survivors testifying against the defendant at trial, this will only help your case.
Hire an expert on rape myths
It is almost certain that the perpetrator and his attorney will commit one or more rape myths in the course of the case, and will likely commit them before the jury. Why didn’t you go to the police? Why didn’t you fight back? Why didn’t you run away or try to escape? Why didn’t you file the case earlier? Why didn’t you get medical attention? Why did you write friendly letters to the rapist after the rape? Why did she have a sexual relationship with the perpetrator after assaulting her? Why don’t you cry on the podium?
I hear these kinds of questions all the time, not only from defense attorneys, but from reporters, friends, and even the plaintiff’s attorney. Even if well-intentioned, the questions are often seriously misleading. Only 22% of rape survivors go to the police, and the majority do not resist or try to escape. Many of them continue to have friendly or even openly sexual relations with their rapist, whether as an attempt to normalize the assault or regain control, as a means of psychological deprivation, or because of professional pressures. reputational or psychological.
It is crucial to have a respected expert on rape myths dispel these and other myths in front of the jury. Such evidence is “widely accepted by the courts as appropriate subject matter for expert testimony.” Expert testimony may be admissible “to explain behavior of a (rape) victim that may seem unusual or that jurors may not be expected to understand”, for example, “to dispel misconceptions that jurors may have regarding normal responses of rape victims in the first hours after the attack ‘, or ‘to explain why a victim who knows the perpetrator delayed reporting it out of fear’.
Be prepared for a long and difficult battle
From the start, brace yourself and your client for a long and hard fight. But though the battle may be tough, is there anything worth taking easy on?
Ilan M. Mazel He is a partner at Emery Celli Brinckerhoff Abady Ward & Maazel.