By: John D. Winer, San Francisco
In the past, I have written and lectured extensively on how to maximize a plaintiff's recovery in therapist abuse cases. (1)
After representing several hundred victims of therapist abuse, it has become clear to me that maximizing their financial recovery is only one part of the role that a plaintiff's attorney must undertake in representing abuse victims. Although financial compensation is important, and often life saving to abuse victims, it is only part of what these women (2) need to survive and, hopefully, successfully go on with their lives. In addition to money, an abused woman needs to feel that the litigation and its outcome have contributed to her psychological healing. In other words, it is important for the litigation to become part of the victim's empowerment process. This is the psychological process by which an abuse victim "takes back control" of her life.
I have discovered, often the hard way, that although there are significant limitations as to how much an attorney can do to aid in the empowerment process, it is important to: one, recognize that your clients are often looking for more than just monetary compensation, two, aide your client's empowerment when you can (or at least not injure it) and, three, let the client know from the very beginning what your limitations are in terms of aiding your client's psychological healing.
Two different, but interrelated events helped me realize that this article needed to be written. First, when looking back at the professional abuse cases that we either settled or tried over the years, I could not honestly say that the clients who ended up with more money were necessarily happier with the result and more satisfied with our performance, than clients who received relatively little monetary compensation. Secondly, a client, who also leads a women's victims' support group, informed me that although almost every member of her group whom we had represented was satisfied with the result that they ultimately achieved, they were sometimes less than satisfied with the way that they felt they were treated, both by the "system" (which I would have expected) and by our office (which was something of a surprise).
Since this conversation, I have spent a great deal of time talking with other attorneys who handle professional abuse cases and my other clients and former clients to attempt to gain an understanding of the dynamics which occur between attorney and client in professional abuse cases.
As attorneys we could probably all become more sensitive to our clients' needs, at least in terms of verbalizing our own flaws, limitations and our role in the system to help our clients have a reasonable expectation of us and the litigation process from the very beginning of the attorney-client relationship. Since we are dealing with intense human emotions (ours and our clients') and clients who have been, by definition, traumatized at least once by a professional, there is nothing that we can do to absolutely insure smooth and satisfactory communication between attorney and client. We will continue to make mistakes and our clients will sometimes be disappointed in us and will sometimes have unrealistic expectations of us. Also, no matter what we do, there will be clients who, because of the nature of their underlying personality structures and/or their response to the litigation process, will be unhappy with us. However, it is my hope and belief that in most cases, if we do our job properly, the plaintiff will feel satisfied with the result she receives, both monetarily and emotionally, and will be satisfied with the work that we put into achieving that result.
II. How the Client's Background May Impact
the Attorney-Client Relationship.
Although victims of professional abuse vary widely in background, age, personality and intelligence, it is useful to examine at least one of the characteristics that they may have in common.
Most victims of professional abuse were either sexually or physically abused as children or otherwise traumatized by an unavailable or distant parent.
In most cases, it is the childhood abuse that "sets the plaintiff up" for the later abuse by the professional. As a result of the childhood abuse or neglect, the plaintiff develops a poor sense of self and difficulty differentiating between appropriate and inappropriate conduct on the part of care givers. (Something as seemingly crazy and inappropriate as a therapist having sex with a patient does not seem so abnormal to a person who had sex with their father.) The poor self image allows the plaintiff to feel overwhelmingly flattered by the attention of the powerful, magical (in her eyes) professional. The inability to recognize appropriate professional boundaries leaves the plaintiffs particularly vulnerable when the professional steps outside of his boundaries to begin the exploitative behavior.
As attorneys, we should recognize that the early childhood trauma of our clients not only led to the abuse by the professional, but will also have a profound impact on our client's relationship with us.
III. Stages of the Client's Response to
The Perpetrator's Abuse and the Litigation. (3)
As attorneys, we must remember that the client will be undergoing a very painful emotional and psychological recovery from her abuse at the same time that she comes to see us for legal help. Although it would make our job easier, it is impossible for the client to successfully compartmentalize the psychological recovery on the one hand, and the "legal" recovery on the other hand.
Whether or not the client litigates her case, she will be "recovering" from the professional abuse in significant ways for years after the abuse ends. Whether the litigation helps or hinders the recovery process may be debated. (Plaintiff's experts will say it helps, the defense experts will say it hinders.) However, there is no question but that the litigation complicates the client's recovery. If we can understand the client's psychological recovery process, we will better understand the client's reaction to the litigation and to us.
As attorney and client, you will have to travel a sometimes rocky and usually long road together. Your client will experience a fairly predictable range of emotions during the course of the litigation. We will attempt to delineate five recognizable stages of the abuse victim's recovery and reaction to the litigation.
A. Stage One: Hurt and Puzzled
At this point the plaintiff is still suffering acutely from the abuse. Time seems to play no role. Women who were abused many years ago may "hurt" more than those who suffered a recent abuse because they have been carrying their feelings around for a longer time. (This is why the statute of limitations seems so unfair to abuse victims.) They are often puzzled, they do not know what they can do to "make things better". It is often at this stage that they will make their initial appearance in your office.
Do not seem surprised to find a woman who is confused and ambivalent. It is not automatically safe to assume that she wants revenge or even money from the defendant. Often, at this stage, any notion that their suit will hurt or anger the abuser is intolerable because many of the victims still harbor affectionate, protective feelings for the perpetrator and/or may be afraid of him.
At this stage, it is important that you clarify as much as possible the client's goals and your role in the litigation. See Section VI.
B. Stage Two: Hope
After the attorney-client interview, the client often feels a great surge of hope. She has found an ally who will help her fight back against the "enemy" as she may now see the defendant. At this point, the element of control becomes essential. The plaintiff who has emerged from an abusive professional relationship has usually been controlled by the abuser. Her emotions, her time, her values, her aspirations, her home life and career have probably suffered by the controlling perpetrator. In the process of empowerment, she virtually longs to take back that control, and in the process of litigating her case it is her opportunity to do so. Therefore, her attorney should expect her (probably more than other kinds of clients) to want desperately to be involved in all aspects of the case. She will want phone calls returned quickly, she will want to know all the nuances of the process, she will want to have all the information necessary to make decisions. In other words, she may transfer her needs for control of the abuser onto her lawyer. She wants to be in the driver's seat or at least in-tandem.
As an attorney representing abuse victims, you must make it clear to the client how much control you are willing and able to give over. Every attorney has a different style, and, your client has a right to know how much participation she will have in the discovery process and decision-making process. Also, expect a shift in the client in this regard. During the first stage, she may want you to take care of everything. However, as her empowerment grows, she will probably want to take a much more active role. As a general rule, we explain to the client that she will have tremendous power and control over any settlement decisions. However, it is impossible for her to be involved in every litigation and strategy decision. We simply do not have the time to involve the client in day to day discovery decisions. If you have a client who needs to participate in every decision in the case, and you are not able to accommodate her, then, you both should seriously consider not working together.
C. Stage Three: Anger
During the discovery process when depositions are given and taken and the client is subjected to intense scrutiny and must listen to or read the defendant's version of what happened, she may become furious with the defendant, the system and her attorney for not protecting her. She begins to resent a judicial system which she feels is too lengthy, unpredictable and unfair. She may even consider dropping the action altogether.
Simultaneously, the client may find that the relatively unemotional forum of litigation clears her mind and forces her to look at the situation logically. This shift from an emotional approach to a more logical approach may produce great feelings of anger towards herself and towards the perpetrator. At this point, the client usually drops her reluctance to take money and looks for ways to punish the abuser.
This may be a particularly difficult stage for attorney-client relationships because, the client may direct her rage for the abuser and the judicial process onto the attorney. As much as possible, the attorney must not invalidate the client's anger at the perpetrator and the system and, the attorney must ride out any anger which is directed at the attorney.
D. Stage Four: Frustration
The client will become frustrated with the litigation process. Many clients in support groups complain about the countless delays, continuances, vacations, unanswered letters and phone calls. Frustration may turn into despair. Whether justified or not, the plaintiff will probably feel, at times, a lack of attention. This lack of attention may be reminiscent of the manipulation she suffered at the hands of the abuser. She will again feel that control is slipping away. She will feel that her attorney is doing nothing, that he or she is ignoring her and she may believe that the attorney has found another case more attractive or lucrative. This will result in feelings of rejection.
Although there is probably nothing an attorney can do to prevent this stage from occurring, there are some things which he or she can do to make it easier for the client. In particular, the attorney should reassure the client that he or she has not lost faith in her case (unless they have) and that the attorney is optimistic about a good outcome. An effort should be made to explain to the client that as an attorney, you handle many cases at the same time, and there will be peaks and valleys in terms of the activity level. At times when another case is very active, you must devote almost all of your time and energy to that case. That time will come in this client's case and, they will want you to be devoting a similar amount of time and energy to their cause. This may not put the client completely at ease, however, it may help to ease their burden.
E. Stage Five: Resolution
One of the periods of activity which clients find very satisfying is the resolution process. Most cases are settled, and, most cases are settled to the satisfaction of the client. Often, the process of settlement is as important to the client as a monetary award. For the first time since the very beginning of the case, the client is closely involved in the decision-making process. The process of mediation or settlement is one in which the client's wishes are heard, her decisions are crucial and her presence is vital. She is working hand in hand with her attorney and feeling in control.
The attorney should never underestimate how emotionally significant the termination of the litigation is to the plaintiff. In most cases, the termination of litigation will have a very positive and negative component. On the positive side, the client will have achieved some closure and, hopefully the sense that she was "right". On the negative side, the client will now lose the focus which the litigation has provided to her. Although she may have intellectually realized it, she now will have to face the emotional reality of the fact that "winning" the case will not heal the deep wounds which she has suffered at the hands of the perpetrator. As an attorney, I believe it is important to encourage the client to remain in therapy for as long as necessary, and, to explain to the client that the termination of the litigation is actually an opportunity for her to devote all of her energy to the healing process.
IV. Attorney-Client Relationship and the
The key concept in professional abuse cases is transference. In its most formal definition, transference is the process by which a psychotherapy patient unconsciously transfers feelings, perceptions and desires which she had for a parent or significant figure in her early childhood onto the psychotherapist. Psychotherapists are trained to treat patients by recognizing the transference and then helping patients gain insight into their own problems through utilization of the transference.
Although transference is a term utilized in psychotherapy, certain transferences exist in all relationships. As a general rule, the more one-sided a relationship, in terms of power and knowledge, the more intense will be the transference.
Thus, it is essential that an attorney recognize (actually in all cases but particularly in professional abuse cases) that there will be a transference which exists between the attorney and client and the client and attorney which will affect the attorney-client relationship in critical ways.
In most cases, an attorney can adequately represent their client without knowing the first thing about the transference process. For instance, in a car accident case, an attorney may become inappropriately angry at a client as the result of a transference reaction but as long as the attorney maintains his or her professional stance, it is probably not particularly important that the attorney analyzes whether his or her anger is a result of the transference process or any other factor. However, in professional abuse cases, in which the client has already been abused by a professional, and probably her parents, the attorney must be hypersensitive not to repeat that abuse and must be hyperalert in maintaining his or her own appropriate boundaries, both in terms of sexuality and containing emotions. In other words, client contact must be at an extraordinarily professional level. This does not mean that the attorney has to be cold and uncaring but, as much as possible the attorney must constantly keep his or her own feelings for the client in check, whether they are positive or negative feelings.
It is even more important for the attorney to recognize the fact that the client will be transferring unconscious feelings stemming from his or her childhood onto the attorney. Since attorneys are not trained in "handling" the transference, it would be a monumental mistake for an attorney to attempt to "help" the client by helping the client "work through" the transference with the attorney. Rather, the attorney should recognize the fact that the transference exists, do what he or she can to minimize the transferential nature of the relationship and not do anything to intensify the transference. Things will run far more smoothly if attorney and client are relating to each other as "real people" as opposed to transferential fantasy figures.
V. Leveling Out the Client's Expectations.
It goes without saying that the attorney must do absolutely nothing to encourage the client's sexual feelings about the attorney. There are many ways in which an attorney can be unconsciously sexually seductive without the attorney realizing it. The power that comes from the attorney's role as "professional" is in itself seductive to many clients. That is an inherent part of the process and entirely appropriate and acceptable. Where an attorney can get into trouble, particularly an attorney who does not handle many of these cases, is by misusing that power to manipulate the client and by increasing the client's expectations and, perhaps, magical expectations of the attorney by the attorney holding himself or herself out as being the client's "savior."
Everybody, even the most psychologically healthy people, have some secret, magical fantasies of being saved. Children who have been abused will often have stronger fantasies of this type than other children. More often than not, the abusing professional who you are suing will have stirred up these feelings in your client and will ultimately have grossly disappointed your client. By the time the plaintiff comes into your office, she will have been led down a false magical path by the abuser, betrayed and spit out. She will often feel like she is at the end of a rope or treading water and you are the person who can save her.
It is normal, particularly in the severe abuse cases, for the client to have these feelings and desires. Since you, as an attorney, deal in a privileged, secret (to the client), mystical world of litigation in which you have the knowledge and power and your client does not, the very nature of the system and relationship will serve to increase the magical expectations of the client.
What you, as an attorney, must do is recognize this phenomena and do whatever you can to decrease the magical expectations which your client will have of you and your office. If you let your ego get in the way and either actively or passively allow the client to believe that you will save her or that the system is set up for that, you will have an unhappy client by the end of the case because you cannot possibly deliver on the client's expectations.
There are ways in which you can help to keep your client's expectations balanced. I make it a point from the first interview until the end of the case to make it clear that although I specialize in abuse cases, I am not always successful and there are certain limitations as to what I can do for a client. I make it a point to not only talk about some of my past successes to clients, but also to talk about my failures. I explain that I make mistakes and my judgment is not always correct. In doing this, I am attempting to limit the magical expectations a client may have of me.
VI. Using the Initial Interview to Lay the Groundwork for a Successful Attorney-Client Relationship.
We usually spend between two and five hours on the initial interview with a client in a professional abuse case. We go into the client's entire background from childhood to present. During the interview, we are attempting to assess two things: one, whether the plaintiff has a viable case and, two, whether we will be able to help the client in such a way as to meet their expectations.
We spend the last half hour to an hour and a half of the interview offering the client our analysis of the case and our opinion as to what they can reasonably expect to achieve in the litigation assuming that everything goes as planned. We also directly ask the client what they want from the litigation and, if their goals are too ill-defined or out of line with what we can offer or what they can reasonably expect to achieve, we do not take the case.
We do not ask our clients what they hope to achieve until we have informed them about the litigation process. Before a client can formulate their own expectations, they must be well informed of what they can expect during the litigation and settlement proceedings.
Professional abuse cases have unique characteristics and problems which the client cannot know about until they have been informed by us. First of all, the existence or non-existence of insurance coverage may dramatically affect the client's recovery. Secondly, even if there is insurance coverage, the facts of the particular case in relationship to sexual act exclusions may affect the outcome of the case and ultimately the value of the case. Third, there is usually at least some statute of limitations issue which will greatly lower the potential value of the case and increase the client's chances of losing completely and having to pay the defendant's case costs. Fourth, there may be monumental proof problems, particularly if the defendant denies the sexual relationship.
Aside from these special problems, the litigation process itself is usually more problematic and traumatic for professional abuse victims than it is for other litigants. The plaintiff's deposition may take more than a week to complete. The plaintiff's spouse will usually be dragged into the case. Family members and friends may have their depositions taken. Almost every aspect of the plaintiff's past will come into evidence including otherwise privileged psychological and drug/alcohol abuse records. In other words, depending upon the tact that the defense takes, the client's entire life and privacy may be invaded by the litigation. They may end up feeling like a goldfish in a fish bowl.
We explain to the client that in most cases the worst case scenario, in terms of invasion of their privacy, does not come to light. However, there will be times during the litigation that they will probably wish that they had never brought the case. But by the end of the case, almost all clients are glad that they brought the case and feel that they have achieved fair monetary compensation and that the litigation, though painful, has to some extent aided them in their psychological/empowerment process.
It is not at all uncommon for a client to tell us during our initial interview that they are not bringing the action to achieve a monetary recovery. I believe that clients honestly believe that statement when they make it before they begin the litigation; however, it has been our experience that the clients who make that statement at the beginning of the case, may end up being the clients who have the highest expectation regarding monetary recovery by the end of the case. I am not sure what accounts for this phenomenon but it is important for the attorney to recognize that it exists. (4) Further, this should be a giant clue that you may not be able to achieve through the litigation what the client is really looking for. It is critical in these situations that you explain to the client that although you will do what you can to aide the client's psychological empowerment, you are being hired to achieve monetary compensation. The same clients who say they do not want any monetary recovery will want you to take their case on a contingency fee basis. It seems elementary, but you must explain to the client that you cannot take a contingency fee based upon a non-monetary recovery. For instance, a client may want the defendant to be forced to enter into therapy. We explain to the client that although we can ask for this condition as a term of settlement, we can't force it to occur. Ultimately, the case will be settled based upon what a jury will do if there is a trial. A jury, as part of their award, can only award damages and cannot take action such as forcing a defendant to enter into therapy or to stop practicing.
We also explain to the client the fact that they have the right to file an action with the licensing board. It is often the licensing board that has the power to achieve the type of non-monetary results which the client is interested in. For instance, the licensing board can stop a defendant from practicing or limit the defendant's practice and the licensing board can often insist, as a condition of settlement, that the defendant enter into treatment. However, we also explain to the client that filing a licensing board action may have negative consequences on their case. It may, in certain circumstances, make the defendant want to fight the case harder because they feel that they have a better chance in front of a jury than they do in front of a panel of their peers. Also, is it really in the client's best interest to put somebody out of business from whom they are attempting to obtain monetary compensation? There is no statute of limitations on a licensing board action; therefore, it is often in the client's best interest to wait until the end of the civil case to bring a licensing board case. However, it is ultimately up to the client to decide when and if to bring the action and the strategy considerations must be carefully explained.
Another critical point which should be brought up with the client at the initial interview is that in the majority of cases, the defendant will ask for some form of confidentiality as part of any settlement agreement. The requested confidentiality may range anywhere from the amount of the settlement remaining confidential to all of the underlying acts and the fact of the settlement remaining confidential. Under public policy, the plaintiff will still be free to pursue a licensing board action; however, it is legal for the defendant to request almost any other type of confidentiality. This request for confidentiality will often have a significant psychological impact on the plaintiff, particularly if they were sexually abused as a child and were asked to keep that relationship secret. The request for confidentiality often recreates that childhood trauma and reactivates those abuse memories. The client can, of course, refuse to comply with the confidentiality request; however, that will often mean that they will have to face the risks and trauma of a trial and even then, assuming that they achieve a verdict, they will probably be requested to enter into a confidentiality settlement to avoid the risk of appeal.
Although you will not be able to predict exactly what type of confidentiality will be requested, it would probably be a good idea to let the client know at the very beginning of the case that there will be a confidentiality request. If the client is unwilling to agree to any type of confidentiality, then you may decide that you do not want to take the case since the expense and risk of knowing that you are going to have to try the case may not be worth the potential recovery. In any event, it is best if the confidentiality request at the end of the case does not come as a surprise.
VII. The Importance of Informing the Plaintiff About How Your Office Functions During the Litigation Process.
Once you have decided to work together (if not before), it is important to explain to the plaintiff the usual way in which your office litigates and processes cases. For instance, in our office, most of the direct client contact, not involving settlement discussions, is conducted through an associate attorney and/or a paralegal. Although I am generally aware of what is occurring in the case, and I make most of the strategy decisions, there may be periods of time in which an associate or staff member has more knowledge of the details of the case than I do. It is helpful if the client knows this from the very beginning so they know what to expect.
Also, we do not send the client a copy of every piece of written discovery that changes hands. Again, it is useful if the client knows this from the beginning.
Clients often complain that "nothing is happening on their case". We attempt to explain to clients at the time of the initial interview that there will be times periods when there will be frenetic activity on their cases, and, there may be other times when we may be in a holding pattern waiting for a court date. The speed at which a case moves is often dictated by the courts and not us. Further, in terms of settlement, delays are often caused by internal defense posturing between the insurance defense lawyer, and defendant's personal counsel. This is another matter that we have little control over. In any event, we explain that we will try to move things along as fast as possible. However, there will inevitably be times during her case when there will be not much going on. The client should be prepared for this inevitable situation.
Of utmost importance is for you to define what your role and the role of your staff will be during the litigation. We receive many calls from clients which would be better handled by the client's psychotherapist. We avoid giving psychological advice, at any cost, and if a client calls complaining of extreme depression or suicidality, we ask the client to call their psychotherapist and, if they have no psychotherapist, to contact an emergency room. It is a large mistake for the attorney to think that he or she can act as the client's psychotherapist. It is too draining on the attorney and ultimately will lead to burnout and resentment and it is probably not that helpful for the client who needs expert psychological advice at those moments and not the help of a lawyer. That does not mean that the attorney should not be compassionate; however, the compassion is best shown by leading the client towards somebody who is truly an expert in helping them with their particular psychological need at the moment, while you help them with their legal case.
Given the nature of professional abuse cases, it is inevitable that relationships between attorney and client will be strained from time to time. However, if the attorney is hyper vigilant to stay in his or her role, and the client is adequately informed as to what to expect, both in terms of the litigation and your office procedure, conflicts and difficulties should be able to remain at a minimum. The attorney must recognize that the client may be seeking more from the case than monetary compensation and the client must recognize the fact that they are hiring the attorney for the main purpose of achieving monetary compensation. If the expectations of attorney and client are understood at the beginning of litigation, there is a good chance that the client will achieve a result in the case that will make her satisfied, both with the result and the performance of the attorney.
1. "Medical Negligence — Psychotherapist Sexual Contact With Client" 14 AmJur Proof of Facts 3rd 319; Helpful Hints on Litigating Therapist Abuse Cases, CTLA 30th Annual Convention Syllabus, 1991; Trying the Therapist/Patient Sex Case, CTLA 25th Annual Tahoe Seminar Syllabus, 1990.
2. Although professional abuse victims can be male or female, the overwhelming number of victims are women. Therefore, at times in this article the feminine gender only will be utilized; however, the same basic principles would apply to male clients.
3. The author would like to thank Gretchen Haskin, founder of Forbidden Zone Recovery, a Bay Area professional abuse victims support group, for her substantial contribution to this section of the article.
4. Gretchen Haskin of the Forbidden Zone Recovery Group offers this possible explanation: "Why do clients deny wanting a monetary settlement during the 'hurt and puzzled' stage? Taking someone's money is punitive, and they are not ready to punish. Also, it seems a greedy and 'unfeminine' thing to do. It also may represent another tie to the perpetrator much like the divorcing woman who says 'Oh, I don't want a cent from him!' (and regrets it later). In our society, money has an emotional value that often exceeds its purchasing value, and because the injury has been emotional, money doesn't seem to be an adequate compensation."
This article was authored by John D. Winer. Winer, McKenna, Burritt & Tillis LLP
specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.