Focus your discovery on who knew what, and when, while limiting the minor’s involvement in the process
Sexual abuse cases involving minors are some of the most challenging and emotional – yet rewarding – cases that a plaintiffs’ attorney can take on.
Representing minor victims of sexual abuse requires an ability to navigate the most sensitive topics while aggressively fighting for the documents and information that you will need to win your case. Do not expect any compassion from defense counsel despite the delicate nature of these cases. Sexual-abuse cases are often hard-fought legal battles on every issue − from liability to damages − and defense counsel will take any opportunity to discredit the minor victim, attack the victim’s family, and cover up or diminish their clients’ wrongful conduct.
Here’s what you need to know to successfully represent your minor plaintiff in a suit against the perpetrator of the abuse and the perpetrator’s employer:
Meet with the minor plaintiff without his/her parents present.
At your first client meeting, you should meet with the plaintiff’s parent or guardian and the minor plaintiff. The parent or guardian will serve as the primary contact and decision-maker in the litigation. Be aware that victims of abuse are often reluctant to disclose every detail of the abuse with their parent in the same room. You should dedicate a portion of this first meeting to meet privately with the minor plaintiff. During this one-on-one meeting, encourage the plaintiff to speak candidly to you about the details of the abuse.
Depending on the age of the plaintiff, the one-on-one meeting is an appropriate time to discuss the plaintiff’s social-media presence. Defense counsel will invariably explore the social-media use of the minor. If there is anything on the Internet (racy photos, vulgar language, etc.) that can make the plaintiff look bad, defense counsel will find it and use it against the plaintiff.
Limit the minor’s involvement in the litigation.
Keep the minor plaintiff out of the legal proceedings as much as possible. This is done not only for the protection of the plaintiff, but also to preserve the plaintiff’s testimony from being tainted by the legal process.
There will be a handful of important events that require the minor plaintiff’s involvement. Most important will be their deposition. Minors make excellent witnesses because they have no hidden agendas and their testimony is truthful, untainted, and from the heart. However, this does not mean that they should not be thoroughly prepped before the deposition. You will need to dedicate at least one full day to preparing the minor for their deposition. It is important to prepare the minor to speak about the sexual abuse and to not be shy or embarrassed to describe all of the details. If their case involved a criminal case against the perpetrator and the plaintiff provided testimony in that case, you should review that prior testimony with the plaintiff to maintain consistency.
Focus your discovery on notice – who knew what and when.
In many child sexual-abuse cases, you will sue the perpetrator of the abuse as well as the perpetrator’s employer. The key to holding the employer liable is notice. Notice should be the focus of your discovery – what did the employer know about the perpetrator, when did they know it, and what did they do after they knew it?
Request records from law enforcement and the district attorney.
Often, the perpetrator of the sexual abuse will be criminally charged. If the criminal proceedings are ongoing at the time you are preparing to file your civil case, you may want to hold off on filing your suit for as long as possible. There are two reasons to do this. First, you want to avoid stepping on the district attorney’s toes. Second, the criminal case files from law enforcement and the district attorney contain invaluable information and won’t be released to you until after the criminal case is complete.
If you file your civil suit before resolution of the criminal case, a discovery stay would be useful to ensure you have all the criminal-case documents before deposing key witnesses. Because of the defendant-perpetrator’s ability to invoke the Fifth Amendment in any discovery requests, you can often get a discovery stay ordered by the court if the defense counsel will not stipulate to it.
Once the criminal case is complete, immediately subpoena the entire criminal file from both the district attorney and law enforcement – you will get different documents from each. You may also want to subpoena the lead detective from the criminal case with a document request for his entire file.
Request the perpetrator’s personnel file and any “blind” or “site” files.
As discussed above, in order to hold an employer liable for the sexual abuse perpetrated by its employee, you must prove notice. Document requests and special interrogatories to the perpetrator’s employer should focus on determining who knew what about the perpetrator’s wrongful conduct, when they knew about it, and what, if anything, they did about it.
Notice generally takes the form of “complaints” about the perpetrator. In an employment setting, complaints are often memorialized in writing. These written complaints or notes of verbal complaints will be the foundation of your case.
Always request production of the perpetrator’s entire personnel file. If your case involves a school employee/ teacher perpetrator, you will want to request both: (1) the “formal personnel files” which contain certain documents that are allowed by law to be placed in the file; and (2) any “site file” or “informal,” “confidential,” or “blind” personnel files or similar writings. Where formal personnel files are restricted by union contract, the school principal will often keep an additional on-site file for each teacher. This “blind” file will be where the principal places personal memos and notes of complaints from students, teachers or employees, warnings and counseling provided in response to complaints, and all kinds of other useful information.
An additional request should be made for any documents, memos, emails or similar writings, which set forth or describe any warnings, reprimands, or counseling given to the perpetrator. You will also want to request any response by the perpetrator to any discipline referenced in those writings.
Defense counsel will always object to the production of personnel files, complaints, and disciplinary documents based on confidentiality and privacy rights. These documents can be key to your case, so be prepared to bring a motion to compel; in most circumstances, the court will grant your motion.
In deciding the motion the court will balance the third-party’s (perpetrator’s) privacy rights against the need for the documents. (See Britt v. Superior Court (1978) 20 Cal.3d 844, 855, 856; Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 525.)
To prevail you need to demonstrate relevancy, a compelling need for the documents, and that the information sought cannot reasonably be obtained through other non-confidential sources. (See Harding Lawson Associates v. Superior Court (1992) 10 Cal.App.4th 7, 10). In your motion, lay out for the court all the reasons why the requested documents are crucial to your case because they are the best and most reliable evidence of: (1) any complaints against the perpetrator; (2) when the perpetrator’s employer learned of the complaints; (3) any response by the perpetrator or any action taken by the employer in response to the complaints; and (4) whether the complaints were investigated by the employer.
Don’t just depose the obvious liability witnesses.
In sexual-abuse cases, some of the most compelling liability testimony comes from the least-expected sources. It is often the case that a random teacher/employee will have seen something questionable involving the perpetrator and either failed to report it or reported it and nothing was done about it.
You will not get the liability testimony necessary to prove notice through deposing only the obvious sources – perpetrator’s direct supervisor, school superintendent, school principal, etc. This requires you to take many depositions and not just the obvious deponents. For example, in a sexual-abuse case involving a teacher and student, consider deposing the teacher in the classroom adjacent to the perpetrator-teacher’s classroom, or former students of the perpetrator-teacher who had negative experiences in their classroom.
Always depose the perpetrator.
You must take the deposition of the perpetrator of the abuse. This may seem like a no-brainer; however, in many cases the perpetrator will be difficult to pin down, either because they are in prison or because they are represented by counsel and threatening to invoke the Fifth if deposed.
The perpetrator can be one of your best liability witnesses. He or she can provide invaluable information regarding school/employer procedures, including poor supervision practices and prior complaints. You should explore how the perpetrator carried out the abuse, whether the perpetrator thought he or she would get away with it (because of a lack of supervision or other factors), what the perpetrator’s supervisors were really saying to him or her if there were earlier complaints or discipline, and the perpetrator’s perception regarding the seriousness of any discipline leveled against him or her.
Take the deposition in prison if necessary. This will require advanced planning and jumping through a few hoops, but it is worth it.
Do not be discouraged if the perpetrator takes the Fifth at the deposition. Pin him/her down on the record regarding the intention to not answer any questions based on the Fifth Amend-ment. This will prevent him/her from coming forward at trial with different testimony.
Finally, videotape the deposition. If the perpetrator is still in prison at trial, play the video for the jury so they can have the visual of the perpetrator in prison. This will convey the seriousness of the conduct and resulting charges.
Protect the plaintiff by knowing the boundaries of discovery.
Code of Civil Procedure section 2017.220 expressly prohibits any discovery concerning the plaintiff’s sexual conduct with individuals other than the alleged perpetrator in cases involving sexual harassment, sexual assault, or sexual battery. This includes sexual conduct before the abuse that is the subject of the civil suit, as well as after the abuse. If the defense wishes to inquire into these areas, they must first obtain a court order.
Section 2017.220 is your weapon to counter defense attempts to discredit or humiliate the plaintiff. In deposition, if the defense inquires into the plaintiff’s past sexual relationships, sexual experience or similar areas, you should object and instruct your plaintiff not to answer.
Limit the defense medical examination.
At some point, defendants will request a psychological examination of your plaintiff. You are not allowed to be present at this examination, so it is important to hammer out the limitations of the examination in writing before confirming the plaintiff’s attendance.
The defense will push for multiple days of interviewing and testing with multiple psychologists or psychiatrists. You should agree to an examination with one doctor only and for one full day, allotting time for appropriate breaks for the plaintiff. Limits on the number of hours spent on testing versus interviewing should also be set – an allowance of three hours for interviewing and three hours for testing should be sufficient. Always demand that the interview portion of the examination be audio recorded and that a copy of the recording be produced after the examination.
Without appropriate parameters in place, the defense will use the interview portion of the examination to conduct a second deposition of plaintiff and inquire into all the areas that were off-limits at the deposition. Before the examination, confirm in writing that the examiner is not permitted to inquire into prohibited areas (such as plaintiff’s sexual history with anyone other than the perpetrator of the abuse) and that plaintiff is permitted to end the examination if the examiner inquires into prohibited areas. Prepare your client before the examination regarding what is off-limits, and be available by phone on the day of the examination so that you can respond to any issues that may arise.
The damages will be largely non-economic.
You will never have a huge economic-damage model in a sexual-abuse case. Plaintiff’s damages will be primarily non-economic and it will be all about proving emotional-distress damages.
At the outset of your case, make sure the plaintiff is treating with a therapist. Also recognize that, at some point, those therapy records will end up in the hands of the defense. You have no control over what the therapist writes in their records – some therapists write brief, bullet-point session notes and some write every word that comes out of the plaintiff’s mouth at a session. Before producing those therapy records, you must read through them thoroughly (or have a nurse review and summarize) for any information you want protected from disclosure – including information regarding plaintiff’s sexual history or prior instances of sexual abuse (with people other than the perpetrator) and third-party privacy rights.
If group therapy and family therapy are recommended, the sessions should be with a different therapist than the one who is exclusively treating the plaintiff. Group therapy records will be protected from disclosure pursuant to third-party privacy rights and can be inadvertently disclosed if included in the same chart notes as the plaintiff’s one-on-one therapy. If group or family therapy with a different therapist is not possible, then request that the therapist keep the group-therapy records separate and apart from the plaintiff’s one-on-one therapy records. The files should not be intermingled.
In addition to therapy, emotional-distress damages will be demonstrated through the testimony of the plaintiff and those people who are closest to the plaintiff. Before the plaintiff’s deposition, prepare them to discuss, in depth, the effect that the abuse has had on their lives including how they felt when the abuse was occurring, how they felt in the immediate aftermath of the abuse, and how they feel today.
Often, particularly when the plaintiff is very young (14 and under), they may have difficulty articulating the effect of the abuse. The plaintiff’s parents and family will help to fill this gap and explain to defense counsel (and the jury) the impact on the plaintiff and changes in the plaintiff since the abuse. It is not enough for them to testify generally about how the plaintiff is doing, or to say that the plaintiff is “sad” or “upset.” They must explain in-depth how the abuse affected the plaintiff with specific examples, where appropriate.
A great expert psychologist is the final piece of your emotional damages puzzle. You should retain someone who is well-versed in explaining the impact of childhood sexual abuse on victims. They should clearly explain the effect the abuse will have on the victim’s life milestones such as future consensual sexual relationships, marriage, child rearing, and so on.
List investigating law enforcement officers as your “non-retained” expert witnesses
When preparing your expert witness list, list the investigating officers from the criminal case as “non-retained experts.” At trial, this will ensure that the officers are permitted to discuss their training and expertise in investigating sexual-abuse cases. Most officers have investigated hundreds or even thousands of childhood sexual-abuse cases and have interviewed countless child-sexual-abuse victims. With this training and experience, the officer can best explain to the jury the difficult and unique issues that arise in these cases including – why it is perfectly normal for victims of sexual abuse to be reluctant to come forward and report the abuse; why victims protect the perpetrator; why victims experience shame, fear and embarrassment; and how that shame, fear and embarrassment affects the victim’s ability to stop or report the abuse.
At trial, call the investigating officer as your first witness. They will set up the scene of your entire case and establish a serious tone for the trial. Since the officer is a non-retained expert, you should use them to articulate generally how “grooming” and “conditioning” tactics are employed by sexual predators, as well as the effect these tactics have on child victims.
This will build up the credibility of the plaintiff by laying out the specific grooming and conditioning tactics employed by the perpetrator in order to manipulate and abuse the plaintiff. This is especially valuable in cases involving “older” (14 and over) minor plaintiffs where the defense may attempt to present the sexual abuse as a “relationship” between the perpetrator and the plaintiff.
The delicate subject matter coupled with the contentious legal battling involved in litigating sexual-abuse cases can take a toll on even the most resilient attorney. However, at the end of the day, these are the most rewarding and fulfilling cases you can take on.
The litigation process will empower the plaintiff to overcome the victimization and abuse they suffered and in many cases will effect positive change in schools, youth organizations and religious institutions to protect children from future harm.
David M. Ring is a partner with Taylor & Ring, where he specializes in plaintiffs’ personal injury and wrongful death cases. He also specializes in representing victims of crime, particularly victims of sexual abuse, assault or harassment, in civil cases and has obtained many precedent-setting verdicts and settlements in that area of law. He was named Personal Injury Lawyer of the Year (2015) by California Lawyer. The Daily Journal selected him as one of the Top 25 Plaintiff Lawyers in California (2015).
Natalie Weatherford of Taylor & Ring, Los Angeles, handles all types of personal injury cases specializing in handling sexual abuse, sexual assault and sexual harassment cases involving children and adults.
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