Distant Memories, Fresh Wounds: Litigation Strategies for Sexual Abuse Lawsuits.

Author:Pollack, Daniel
Position:Legal notes - Essay

In most claims for personal injury there are time limits by which the claim must be brought. There are various exceptions, including sexual abuse that took place many years ago when the claimant was a minor. In all lawsuits, the credibility of facts and witnesses is crucial. Abuse allegations, by their nature, are infrequently able to be independently, conclusively verified, further, litigation is inherently an endeavor in which witnesses may have a stake in a particular explanation of past events.

Assuming there is no statute of limitations concern, what are some of the unique challenges and "tricks of the trade" of filing or defending against this type of civil lawsuit? We asked a number of experienced attorneys to share their insights about handling a sexual abuse case when the alleged abuse happened many years ago. The following are their observations.

  1. Cameron R. Getto, Michigan

    It is important to remain objective and avoid over-identifying with the client. Most injury lawsuits are significantly simpler to litigate than sexual abuse cases. This is because even if a physical injury is fully healed, there is almost always an abundance of physical evidence from which the attorneys can independently evaluate the magnitude of the harm as well as the possible or likely cause(s). Discrepancies among witness accounts of what may have happened almost always take a back seat to the objective, verifiable evidence, because juries tend to understand that witness accounts involve a certain amount of subjectivity.

    In contrast, sexual abuse cases, particularly those remote in time, frequently involve circumstances in which no objective evidence of wrongdoing exists. Often, there are only two witnesses, both of whom present versions of the facts that contain key, dispositive differences. Additionally, we all know that truthful, honest people sometimes tell lies, and that liars sometimes tell the truth. In remote cases, the passage of time raises questions of motive that ordinarily are not at play when a recent physical or visible injury is evident.

    Because these dynamics shift the focus away from verifiable facts and instead place enormous importance on who to believe, an effective advocate must endeavor to remain objective. He or she must remain relentlessly focused on supporting the credibility of the client, even if the attorney believes every claim or account of events the client advances.

  2. Katie Shipp, Pennsylvania

    When the statute of limitations is not an issue, cases involving sexual abuse that happened long ago can still raise significant barriers for victims. Locating evidence is often challenging. Witnesses, or people the victim told about the abuse, can be difficult to track down and often their memories may be unclear, especially about critical dates and times. Further, documentary evidence may have been destroyed or buried in a long-forgotten archive. In cases of abuse...

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