How to deal with a Child Victims Act client with a weak case

Abstract

The decision to bring a lawsuit by survivors of child sexual abuse is an especially agonizing one. The last thing they want to hear from their prospective or retained attorney is that the legal case is just not a good one-or that it might take years to resolve.

Full text

1
EXPERT OPINION
How to deal with a Child Victims Act
client with a weak case
Helene M. Weiss and Daniel Pollack | September 8, 2023
The decision to bring a lawsuit by survivors of child sexual abuse is an
especially agonizing one. The last thing they want to hear from their
prospective or retained attorney is that the legal case is just not a good
one—or that it might take years to resolve. How do attorneys properly
relay sensitive and important case information to their clients? And, how
should attorneys manage expectations from the outset with an especially
vulnerable client?

2
Strong v. Weak Cases
New York’s Child Victims Act (CVA) extended the statute of limitations
for survivors of child sexual abuse in criminal and civil cases. Previously,
the statute of limitations for misdemeanor offenses ended when
survivors turned 20 years-old.
Since August of 2019, nearly 11,000 CVA cases have been filed across
New York State. Out of those cases, over 50% of filed claims name a
religious institution as a defendant. Although the CVA window closed on
August 14, 2021, the new legislation allows victims of sexual assault to
bring a civil lawsuit until their 55th birthday, as opposed to previous
legislation limiting the time until a plaintiff’s 23rd birthday.
The Child Victims’ Act has empowered survivors of abuse from decades
ago to seek justice for the crimes committed against them as
children. But, the passage of time in these important cases also brings
many hurdles for the attorneys on the front lines, as well as their
clients. Crucial witnesses may have since passed away, photographs and
employee directories may be difficult to recover, and defendant
institutions may have since deleted essential documents that would have
helped prove a client’s claim. As such, proving a CVA case can be
burdensome for attorneys who are left with only the testimony of their
client.
While testimony is considered evidence, and a plaintiff’s testimony
regarding their own sexual abuse may be considered enough evidence to
secure a positive outcome, a stronger CVA case exists when a plaintiff is
able to produce some sort of documentary evidence, such as medical

3
records, therapy documents, photographs, diary entries, yearbook
information, and other helpful pieces of recorded, relevant history.
Helpful documentary evidence may consist of anything that further
substantiates a client’s claim, as well as evidence that sheds light into a
defendant’s knowledge and notice of the abuse.
In any event, it is imperative for clients to understand how notice
imputed to an institutional defendant will affect their case. This may, in
turn, help clients be more forthcoming with helpful information or
evidence to prove such notice.
Defendant institutions may have retained essential documents—even if
they are from 40 or more years ago. Plaintiff attorneys must be
persistent in seeking this information from defendant institutions, as
discovery sought through litigation can reveal substantial evidence of
notice to the defendant regarding not only an abuser’s propensity to
commit sexual abuse against minors, but also the failures of that
defendant in preventing abuse that they knew or should have known
about.
However, even after diligent research, thorough investigations, and
endless discovery requests, some CVA clients may be left with sparse
evidence that supports their claims, but for their own testimony.
Managing Clients’ Expectations
The key to helping clients who have suffered from unimaginable trauma
is to be upfront and honest about expectations from the very start of
their case. From the outset, attorneys handling cases of this nature

4
should be mindful to manage client expectations through clear
communication.
Clients should be aware that they will be asked sensitive, personal, and
detailed questions about their abuse. Attorneys should be mindful that
each client will have a different set of expectations. Some may want a
quick resolution, while others may already be anticipating a drawn out
process. Either way, clients must be advised that cases of this nature
typically take several years to resolve.
Even with testimonial evidence, documentary evidence, photographs and
recordings, a defendant may not be eager to swiftly resolve these cases.
Attorneys can further combat unreasonable expectations by thoroughly
explaining each step of litigation and how long it may take to complete:
filing a complaint, requesting paper discovery, depositions, medical
examinations and expert evaluations, and for some clients, trial
preparation.
Moreover, attorneys should counsel their clients to be prepared for
invasive and uncomfortable questions from defense attorneys during
discovery and at their deposition. When a litigant has a full
understanding of the scope and nature of how their lawsuit will proceed,
they are less likely to end up with unmanageable expectations.
Nevertheless, lawsuits of this nature are especially taxing on clients—
physically, psychologically, and sometimes spiritually. Clients who are
exhausted by the process may decide they no longer wish to pursue a
case, even after litigation has begun. Other clients may find themselves
out of options after an unfavorable decision on a motion to dismiss or

5
motion for summary judgment is rendered. Learning how to counsel
clients through these difficult stages of litigation is an essential skill.
Most importantly, the attorney must validate the clients’ feelings and
their recollection of the shattering events they experienced. Yet,
attorneys must still be frank with their clients about possible case
outcomes to manage expectations. Breaking bad news is hard. Words
matter, so know exactly what you are going to say before meeting with
the client.
No matter how tactful and sensitive you are, some clients may still be
dissatisfied with your explanation of how (and for how long) their case
could potentially pan out. Toward this end, have a relationship mindset,
not merely a transactional one.
Helene M. Weiss is a partner at Marsh Law Firm, and Special Professor
of Law at Maurice A. Deane School of Law, Hofstra University.
Daniel Pollack, MSW, JD, is a Professor at Yeshiva University’s School of
Social Work in New York. He was also a Commissioner of Game Over:
Commission to Protect Youth Athletes, an independent blue-ribbon
commission created to examine the institutional responses to sexual
grooming and abuse by former USA Gymnastics physician Larry Nassar.
Original link: https://www.law.com/newyorklawjournal/2023/09/08/how-to-deal-
with-a-child-victims-act-client-with-a-weak-case/