 Factors
That Attorneys Consider When Deciding Whether Or Not To Accept A
Professional Exploitation Case
by John Winer
AdvocateWeb would like to make finding an attorney for
professional exploitation victims as positive an experience as
possible. Our experience tells us that attorneys may accept or
reject cases for reasons that may surprise you and for reasons that
have very little to do with what you might think is important such
as the enormity of your injury, your substantial economic losses or
the clarity of the misconduct of the professional who abused
you.
Although the decision to pursue a case may be a very emotional
decision for you, it will be a business decision for an attorney who
is considering taking the case on a contingency fee basis and
advancing costs--i.e.. an attorney who will not get paid and not be reimbursed
for what may be sometimes very substantial costs if the case is
lost.
Professional exploitation cases can at times require a law firm
spending hundreds of hours pursuing the case and advancing costs of
sometimes over a hundred thousand dollars. No matter how dedicated
an attorney may be to helping professional abuse victims, they will
only take your case if the case is likely to be successful and
result in a large verdict or settlement after a great outlay of time
and money or if the case may result in a more modest settlement
without a substantial expenditure of time and money.
There are a number of factors that may make your case more likely
to result in a large verdict or settlement or more likely to make
your case settle quickly, thus making your case more desirable to an
attorney.
There are other factors which will decrease the value of your
case and make it more likely to settle for a low amount of money
after an expensive litigation or not settle at all and result in a
low verdict or a verdict against the victim.
Most ethical attorneys will consider two things when determining
whether or not two take a case; one, will the plaintiff be better
off at the end of the case than they are during the initial client
interview and, two, will the case be profitable for the attorney.
You must realize that it does nobody any good for a plaintiff to
have to go through an arduous litigation only to lose or end up with
little economic recovery. Litigation can be empowering or
disempowering depending upon a number of factors in a case not the
least of which are an attorney's attitude about the case and the
client' expectations.
We hope that the list that will follow will help potential
plaintiffs in professional exploitation cases understand the
attitude of an attorney who may be evaluating the case and the
expectations that a client may have considering the fact that the
outcome of their case will be a lot more dependent on the law of a
certain jurisdiction and the attitudes of judges and juries than it
will be based on any moral sense of right or truth or lies. Further,
a potential plaintiff must understand that the case will not be
decided by professionals who understand the inherent power
differential between professionals and patients or clients, but
rather by judge's who may be very biased in favor of exploiting
professionals or jurors who will be unsophisticated and will
unfortunately be guided by the thought that "I wouldn't have
entered into a relationship like this, and if I did I certainly
wouldn't think of suing somebody for it.
These biases can be overcome, but only in the right case at the
right place in the right time. Your case may or may not be the
"right" case.
Some of the factors that will make your case more or less
attractive to an attorney will include:
The Profession of the Perpetrator
Most states have very strong laws prohibiting exploitation of
patients by psychotherapists. Some states have laws prohibiting
sexual relationships between other health care providers and
patients. Fewer states have laws prohibiting sexual contact between
other professionals and clients, and yet fewer states have laws
prohibiting sexual contact between clergy members and parishioners.
Further, although there is an increased national awareness of the
devastating effects that professional exploitation can have on any
client, for the most part only psychotherapists are trained in the
"transference phenomena"--the process by which a patient
or client transfers feelings and perceptions regarding significant
others in the patient/client's past onto the professional--thus
cases against psychotherapists are usually easier to win because
psychotherapists are not only trained not to sexually exploit their
clients, but they also know by virtue of their training that they
are engaging in professional incest which will inevitably harm the
patient. Other professionals are trained or know that having a
sexual relationship with a patient/client is not a good idea, but
they often do not understand the consequences of their actions.
The Problem With Suing Clergy Members
Clergy members like all members of society are prohibited by law
from having sex with minors. However when it comes to adult
parishioners having non-forced sex with clergy members, most states
stay out of the fray because of the separation of church and state.
Civil lawsuits for money damages must be sanctioned by a state. Most
states are hesitant to sanction any kind of case between a
parishioner and a member of the clergy because they believe that
these are religious matters that should be handled by the church.
Thus, in most states attorneys will be reluctant to handle civil
cases for adult exploitation victims. The exception to this rule
will be cases in which the clergy member is a licensed therapist or
is clearly providing "non-religious" counseling.
The Likelihood of Recovering From A Perpetrator's Insurance
Company
Very few professional's who exploit their patients have enough
money to pay a large verdict or settlement. Thus, if the plaintiff
is going to recover substantial money it is going to usually have to
come from insurance proceeds. If a perpetrator has no insurance,
frequently a professional abuse victim is out of luck. If the
perpetrator has an insurance policy it will have sexual and
intentional act exclusions or a "sex cap" limiting damages
in all cases with allegations of sexual misconduct to 25,000
dollars. Some states have upheld the validity of the sex caps. In
those states a case against a professional without significant assets
will be rarely able to be settled for more than 25,000 dollars.
Other states have not ruled one way or another on the sex caps and
may or may not be willing to find insurance coverage in cases of
sexual or intentional abuse. Generally speaking, a plaintiff will be
more likely to overcome sexual act exclusions or caps if there is
evidence of non-sexual negligence such as a misprescription of drugs
or a misdiagnosis. Usually it is far easier to prove non-sexual
negligence in cases against psychotherapists than it is against
other professionals since the standard of care of psychotherapists
is so well defined when it comes to prohibiting dual relationships
and maintaining strict boundaries. Other professionals do not have
these constraints, thus establishing insurable negligence can be
quite difficult.
The Monetary Assets of the Perpetrator
Obviously, in the absence of insurance coverage or even in cases
in which there is insurance coverage, the financial condition of the
perpetrator will be critical. Many professional exploitation victims
assume that the perpetrator will want to settle the case without
risk of publicity. This is true, but a defendant cannot settle a
case with money the defendant does not have. Also, even married
defendants with money will have trouble paying it to the plaintiff
without their spouse finding out, and making sure their spouse does
not find out may be one of their main incentives for settling.
Unfortunately many professionals who exploit their patients tend to
be equally irresponsible in financial matters, failing to pay taxes
and living beyond their means. It is not at all unusual for a
defendant to go into bankruptcy, leaving the plaintiff with almost
no remedy if there is no potential for coverage against an insurance
company.
The Statute Of Limitations
All states have some time limit on when a case can be brought.
The time limit may vary from six months to a number of years.
Whatever the time limit, if you wait until after the appropriate
time limit to bring your case, you may lose the case no matter how
good it is on other issues. Because of transference, dependency and
the devastating effect of the abuse of the transference many
professional exploitation victims wait until the applicable statute
of limitations to bring their case. Many states have exceptions to
the usual statute of limitations but if your case does not clearly
fit into one of the exceptions you can lose your right to sue. Some
states will rule that the statute of limitations will not run until
a reasonable person had reason to believe that there may have been
malpractice and they may have been injured by it. However, there are
probably no states that will allow a patient who has discovered that
they have been harmed by a professional to wait until they are
"psychologically ready" to bring a lawsuit before they are
required to take action. This is one of the great conflicts between
therapy and the law. Psychotherapists who advise their patients to
wait until they are ready before bringing a claim, may be doing
their patients a great psychological service, but may be destroying
their patient's rights to receive monetary compensation for their
losses.
Where the Case Is Litigated
As realtors say, location is everything. Not only will the laws
vary from jurisdiction to jurisdiction, but the value of a case will
also vary. The same case tried in a big city in a highly populated
state may result in a verdict of millions of dollars while the exact
same case tried in a rural county of almost any state may be lost or
result in a low verdict.
The Vulnerability of the Plaintiff
Although many professional exploitation victims and even their
attorneys do not understand this, the fact is that cases with highly
vulnerable plaintiffs, particularly if they have been sexually
abused as children, will almost always result in larger verdicts
than cases where the plaintiff is not obviously vulnerable. Clients
and unsophisticated attorneys usually hold the belief that it is
important to establish that the plaintiff was psychologically
strong, healthy and highly functional before the abuse to prove that
they were damaged by the exploitation. This simply is not true. The
heart of any professional exploitation cases is the fact that a
professional took advantage of a needy, dependent victim that had
come to them for help. The more vulnerable the plaintiff the more
obvious will be the exploitation and the better the plaintiff's
case. The exception to this general rule would be patients who were
so deeply disturbed before the abuse that it becomes almost
impossible to establish damages.
The Extent Of The Transference
No matter what the law may be in a particular jurisdiction and no
matter what the psychotherapist community might think, there is in
fact a continuum of how a jury or judge will view the inequality of
the relationship between a professional and a patient/client. Where
one's case will fit on the continuum will depend first of all on the
vulnerability of the plaintiff and secondly on the extent of
transference in the relationship. If it is clear that the
patient/client is extraordinarily dependent on and in a significant
transferential relationship with the professional the case will have
a much greater value. If the case looks like it involves a sexual
relationship between two "equals" it will have less value.
The Evidence Of Exploitation
Professional abuse cases are no different than any other type of
case in that proof or evidence is critical. Cases can be won on a
patient/client's word, but the more evidence of the exploitation or
at least boundary violations the better.
The Perpetrator's Admission Of Exploitation
Although not necessary, a plaintiff's case is improved if the
perpetrator is likely to admit or has admitted the misconduct. One
of the unfortunate consequences of the criminalization in many
states of sexual conduct between certain professionals and
patients/clients is the fact that far fewer defendants are now
willing to admit their misconduct.
The Credibility of the Plaintiff
If there is no or limited proof of exploitation in a case then
the plaintiff's case will rise or fall on the plaintiff's
credibility. There are so many factors that will effect a
plaintiff's credibility they can not be mentioned here. However, an
attorney evaluating a case will be assessing your credibility and
the likelihood that a jury will believe you over the professional if
the professional denies the misconduct.
The Likelihood That Some Person Or Entity Other Than The
Perpetrator Will Be Found Responsible For Your Injuries
If the perpetrator is uninsured or lacks sufficient assets to
cover your losses, an attorney will want to know if there is some
other person or entity such as an employer or supervisor of the
perpetrator that may be held responsible for your losses. The law in
this area will vary greatly from state to state, however almost all
states will hold an employer liable if the employer knew or should
have known that the professional was a danger to his/her
patients/clients.
The Clarity Of Causation
Proving that a defendant was at fault in your case is only the
first step toward winning your case. You also must prove that the
defendant's exploitation caused you an injury. This can be very
difficult in professional exploitation cases. Take for instance a
psychotherapist who enters into a business relationship with a
patient from which a patient makes money. Is this a violation of the
standard of care? Yes. Is it exploitive. Yes. Did it cause the
plaintiff damage? Yes and no. The plaintiff clearly financially
profited. However, the plaintiff will claim that the therapeutic
relationship was impaired or destroyed. Will a judge or a jury care
about this? Unlikely. Thus, in every professional exploitation case
an attorney will attempt to asses whether the misconduct caused
damages.
The Extent Of Damages
Obviously cases in which a plaintiff can prove substantial
economic and emotional damages will be worth more money and will be
more likely to result in a large verdict and a large settlement.
Cases in which the plaintiff had incurred and will incur in the
future a substantial wage loss or need for long term intensive
therapy will usually be more attractive to plaintiff attorneys.
The Reprehensibility of the Defendant's Misconduct
The more exploitive the defendant's misconduct the more a jury
will be angry at a defendant and the more likely they will make a
large damage award in favor of the plaintiff, thus the higher is the
settlement value of the case against the perpetrator. But, this is
something of a double edge sword, because the more outrageous the
defendant's conduct, the less likely an insurance policy will cover
it or an employer will be found responsible for it.
The factors mentioned above are meant
to give you a glimpse of the way that an attorney may be thinking
when evaluating your case. They are not meant to discourage you
from coming forward and seeking the advice of an attorney. Every
case is different and you should always consult with at least one
attorney before giving up on your case. After all it is only
through the bravery of exploitation victims coming forward through
the years that the laws have been changed to protect professional
exploitation victims and the exploitation of patients/clients has
been deterred.
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