How plaintiff’s mental injury attorney can anticipate and meet defenses in a sexual abuse of a minor case
Retaining a psychological expert to address most defenses
The plaintiff’s mental injury lawyer should retain the right psychological expert to address most of the defenses that will be raised in a sexual abuse of a minor case. This expert should be able to discuss issues such as:
- Pre-existing condition.
- Past and future damages.
It is particularly important for the expert to meet the “other stressor” defense invariably raised in sexual abuse of minors cases.
Researching all grounds for liability of an entity defendant
In almost every sexual abuse of minor case against an entity defendant (like a church or summer camp), the defendant will attempt to escape liability by filing motions at various stages of the proceeding. An entity defendant does not want the case to go before a jury, because jurors will want to make sure that the minor is reasonably compensated, particularly when the defending entity had a responsibility for protecting minors and failed to live up to its responsibility. Thus, a diligent plaintiff’s mental injury attorney must perform thorough research on all theories of liability against the entity defendant at the very beginning of the case. Thorough legal research will enable the attorney to draft proper pleadings and to perform discovery necessary to satisfy plaintiff’s burdens of proof. With proper pleadings and discovery, plaintiff can anticipate and defeat the roadblock motions that the entity defendant will file to avoid liability.
Dealing with dirty defenses
In many sexual abuse of minors cases, the defendant – whether an individual perpetrator defendant or an entity defendant – will, unfortunately, attempt to defend the case by one or both of the following “dirty” defenses:
- Intimidating plaintiff into dropping the case.
- Blaming the parents for the injuries which the minor has suffered at the hands of the perpetrator or because of the failures of the entity defendant.
Defendants will attempt to intimidate plaintiff’s family into dropping the case by performing as much invasive discovery as possible. Defendants will disrupt the life of plaintiff and his or her family, and then claim that the parents are harming their child by “putting him or her through” this terrible litigation. (Of course, the defendants themselves are the ones that have made the litigation so terrible!) A typical dirty tactic is to take the depositions of everybody who has ever had any contact with the minor plaintiff, including friends, distant relations, teachers and counselors.
There are several important aspects to meeting these “dirty” defenses.
First, the plaintiff’s mental injury attorney should warn the parents of the probability that the defense will engage in these tactics. That way, the parents will not be surprised, and they can make a decision in advance as to whether or not it is worth it to pursue the case.
Second, plaintiff’s attorney must be prepared to be relentless in seeking protective orders to limit the scope of defendant’s discovery and to protect the privacy of plaintiff.
Finally, if the court is not willing to protect plaintiff’s privacy, then plaintiff’s attorney should conduct ethical discovery of defendant, obtaining pertinent documents and taking depositions that are relevant to the case. Plaintiff’s attorney cannot allow discovery to be a one-way street.
If it is anticipated that the defense will attempt to blame the minor’s parents, plaintiff’s psychological expert must be prepared to testify that the type of injuries that the minor has incurred are caused by sex abuse and not bad parenting. Further, plaintiff’s attorney must anticipate this defense tactic and as much as possible keep the parents detached from the litigation. For instance, the minor will require a guardian.
It is normally the duty of the courts to appoint a guardian ad litem for minors in a civil action if the minor is not represented by a general guardian. When a parent is unable, unwilling, or refuses to act as guardian, or the parents’ interests are in conflict with the minor’s interests, the court should appoint a guardian ad litem.
It may be a good idea strategically if the guardian ad litem is somebody different than the parents, at least by the time of trial (this will diffuse the parental “greed” issue). Furthermore, the plaintiff’s attorney should instruct the parents to not discuss the acts of child abuse with the child unless specifically encouraged by the child’s treating psychotherapist. This avoids allegations that the parents are “tampering” with the child and the child’s testimony.