litigating #metoo civil assault cases: potential claims...
TRANSCRIPT
Litigating #MeToo Civil Assault Cases:
Potential Claims and Defendants, Proving
Liability, Evidentiary Issues
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WEDNESDAY, APRIL 25, 2018
Presenting a live 90-minute webinar with interactive Q&A
John C. Clune, Member, Hutchinson Black and Cook, Boulder, Colo.
Kathy Harrington Sullivan, Partner, Barrett & Farahany, Atlanta
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Kathy Harrington Sullivan
Civil Suit for SXA
• Why?
• Monetary damages
• Non-monetary objectives
• Establishes liability
• More relaxed burden
• Holds defendant accountable to victim
• 3rd party defendants
• With or without criminal case/conviction
• Plaintiff & defendant on more equal footing
6
Civil Suit for SXA
• Why not?
• Exclusion of intentional acts
• Stress
• Cost
• Time
• Unpredictability of jury verdict
• Judgment proof defendant
7
Civil Suit for SXA
• Who?
• Assailant +
• Employer
• School
• Parents
• Business
• Healthcare
• Housing
• Transportation
8
SXA at Work
Employer Liability Under Title VII
• EEOC
• RTS
• Severe or Pervasive standard
• Punitive damages depend on size of employer
• Ability to shift burden to employer
9
SXA at Work
Who is the Perpetrator?
• Owner
• C-Level employees
• Supervisor + TEA
• Coworker
10
SXA in General
Personal Injury Claims
• Statute of Limitations
• No damage caps
• Less specific than criminal statutes
• Victim has more control over process
• Broader scope of protection than Title VII
• Drawbacks
11
SXA in General
Possible PI/tort/negligence claims:
• Assault
• Battery
• False Imprisonment
• Intentional/Negligent Infliction of Emotional Distress
• Negligent hiring/supervision/retention/entrustment
• Loss of Consortium
• Wrongful death
• Invasion of Privacy
• Premises Liability
• Malpractice
• Retaliation
12
Investigating the Claim
• Impact evidence :
• Victim testimony
• Witness testimony
• Testimony by victim’s family
• Letters from Psychiatrist/Therapist
• Before and after pictures of victim
13
Investigating the Claim
Employer knowledge
• Was management on notice?
• SXH policy
• History
• Defendant
• Employer
14
Investigating the Claim
Other Evidence
• Assailant
• Victim
• Workplace
15
Investigating the Claim
• Me Too Evidence – most valuable!
• Challenge: Defense will try to keep out
• Best chance to get in: motive, intent, plan, employer’s
repeated practice, pretext, impeachment, rebuttal &
punitive damages
16
Civil Claims Against Sexual
Assault Perpetrators
18
Common Motivations for filing
Perpetrator Claims
Poor experience with criminal
justice System
Poor experience
with campus response
Overriding sense that
perpetrator feels
empowered or not
affected
Trauma and the difficulty
to sit with what has
happened to survivor’s life
19
Positives of bringing claims
Control over the case: complaint, discovery,
deposition of perpetrator
Accountability
Empowerment
20
Downsides of bringing claims
Recovery is delayed
Perpetrator will engage in heavy victim blaming
Even if no media, these issues will all play out within social circles
Basic lack of privacy: texts, emails, social media, etc.
21
Step One: Due diligence
Mental Health HX
Texts, emails, social media
Witnesses
22
Intentional Tort Claims
Sexual Battery/Rape
Assault
Gender Violence
Punitive/Exemplary
23
Insurance Coverage
Intentional act exclusions
24
Negligent Rape Claims
The square peg in the round hole
25
Negligence Claims
Highly Intoxicated Offender
Mistake -Didn’t know I didn’t have consent
26
Evidentiary Issues
Rape Shield
Prior bad acts
27
Establishing Liability
1. Address “He said she said” in jury selection.
2. Clients testimony and its internal credibility is
by itself enough for the verdict
3. Corroborating Medical evidence
4. Corroborating Outcry evidence
5. Treating Therapist: Corroborating diagnoses,
consistent statements, demeanor.
6. Defendant statements or lack thereof
28
Expert Witnesses -Liability
Rape trauma
Treaters
29
Expert Witnesses -Damages
Life Care
Treaters
30
Lay Witnesses -Damages
1.Family/Friends
2. Spouse
3. More distant acquaintance
31
Common Counterclaims
Defamation
Malicious Prosecution
32
Statue of limitations considerations
Anti-SLAPP defenses: MTD and MSJ
Benefits of counterclaims
33
