The Challenges Of Suing The Church
The Challenges Of Suing The Church
Labor-Intensive Cases Can Be Rewarding
By Amy Johnson Conner
Although the media spotlight is now trained on sexual abuse by clergy, lawyers across the country - several of them in small firms - have argued these cases for years.
It has been costly in terms of money, time and emotion, but these lawyers say the professional and personal satisfaction has been well worth the sacrifice.
"It has invigorated me with an enthusiasm for being a lawyer that I don't think I ever had," said Washington solo Tim Kosnoff, who burned out on his criminal defense practice five years ago. Last year he negotiated a $3 million settlement from the Mormon Church in Oregon in his first ever clergy sex abuse case.
"This is all I care about anymore."
Katherine Freberg, a small-firm lawyer in Irvine, Calif., feels the same.
"The cases are very challenging, but they're also rewarding and ultimately present the opportunity for why we all go to law school: Fighting a good cause for someone who's been wronged," said Freberg, who won a $5.2 million settlement against the Los Angeles and Orange County Archdiocese last year.
But to attain this kind of fulfillment, small-firm lawyers must be prepared for the impact a clergy sex abuse case is likely to have on their practices.
While a sizeable settlement can generate a good financial return and the media attention is likely to bring in more clients, the cases are extremely labor intensive. They can take many years to resolve and can drive even successful plaintiffs' attorneys to the brink of financial and emotional exhaustion.
"It's an emotional roller coaster for the attorney as well as the victims," said Freberg.
Freberg knew these would be difficult cases, but didn't anticipate the depth and intensity of the emotional damages the victims live with.
"I cannot tell you the number of nights I've spent on the phone with yet another victim, and I'm crying with the victim - these grown men [who are] crying," she said. "I was hoping that it would get easier over time, but talking to the victims just gets more and more difficult. It's probably because the numbers keep growing and growing and you see the magnitude of the problem."
Kosnoff found it impossible to prevent the cases from spilling over into his family life.
"I spent a lot of Saturdays and Sundays in my home office working in the middle of the night," he said. "I got to be one-dimensional. It was all I thought or talked about. Being married to someone like that isn't a cup of tea, but my wife knew it was important and always had a lot of faith in my judgment."
What was originally a battle of principle is rapidly becoming a profitable cause of action as well.
Although suits against the Catholic Church have received the majority of media attention, similar suits have been filed against many other mainstream religious denominations in the U.S.
"Suing religious organizations is sort of a trendy thing to do now. And it's not just the Catholic Church," said Dallas defense attorney Randal Mathis. "If you sat in my office for a week and listened to the calls, you would be shocked."
The plaintiffs' lawyers who handle these cases have been inundated with calls from victims ready to face the clergy who abused them.
More than 100 new clients with claims of abuse have called Boston's Mitchell Garabedian, who recently negotiated a settlement estimated to be worth $30 million for the victims of defrocked priest John Geoghan.
"The Geoghan settlement is just a beginning [that will] open the door within the Archdiocese of Boston," he said.
Since winning a $119 million verdict for the 11 victims of Father Rudolph Kos in Dallas, one of the plaintiffs' lawyers, Sylvia Demarest, has handled about 15 other cases. Meanwhile, Kosnoff has two dozen cases either pending or ready to be filed against the Church of Jesus Christ of Latter-day Saints in Oregon.
Demarest said that since a handful of attorneys have demonstrated how successful these cases can be, more lawyers than ever are willing to take them. As with any other area of law, she said only a small fraction of the abuse claims result in the filing of a suit, and far fewer of those actually make it to trial.
The defense teams in these cases are normally made up of five or six of the most talented big-firm lawyers in a region, and according to plaintiffs' lawyers, they typically oppose everything.
"You need to expect when managing these cases that most depositions will be fought. Expect there to be a battle on pretty much every issue in the case," Freberg said. "Every little issue, what you normally think is perfunctory discovery, is going to be fought."
Issues in her case went twice to the California Court of Appeal and the defense filed for certiorari with the state Supreme Court.
Be prepared for challenges on constitutional issues, too. They "require tremendous work," Demarest said.
"I felt like I was engaging in a descent into the center of the earth as I got deeper and deeper and deeper into the illness that is the reflection of this hierarchy," she said.
Mathis, who defended the Roman Catholic Diocese of Dallas, said there is nothing unusual about this.
"Both sides fight these cases very hard," he said. "They have very different views about these circumstances. But, it's been a very professional legal process."
The archdioceses of Boston, Los Angeles and St. Paul and Minneapolis did not return several calls for comment.
But defense attorney Von Keetch of Salt Lake City, who defended the Oregon suit against the Mormon Church, had a similar response.
"The church is going to defend itself in any ethical way possible, and I underline ethical, because we are a church and conduct ourselves as a church, even in litigation," he said.
Regardless of which side you view the battle from, it's clear that these are extremely hard-fought cases that require a great deal of money, persistence and a high tolerance for frustration. They are both professionally and personally demanding, and plaintiffs' lawyers can expect to meet several formidable challenges including:
* Financial demands.
For Jeff Anderson, a St. Paul, Minn., attorney who has handled hundreds of clergy sex abuse cases since 1983, a typical sex abuse case against clergy averages $20,000 to litigate. But he has had cases run as high as $150,000.
Other lawyers say the higher figure is not unusual.
Freberg paid about $100,000 in out-of-pocket costs before settling with the Catholic Church in Los Angeles and Orange Counties. As an already-successful plaintiffs' attorney, she was prepared to spend that much.
"I knew from the start that the case would be expensive, because I knew that I would have to hire numerous experts. I did end up using seven," Freberg said. "I also knew that in these cases there would be a lot of depositions. There were close to 40."
According to Kosnoff, one of the most expensive things about the cases is taking depositions in other states.
In his case, the church hired local counsel for each out-of-state deposition and objected to many deposition questions, which forced him to hire local counsel to litigate the church's refusal to answer questions.
"It doesn't take long to run up $10,000, $15,000 or $20,000 in legal fees," he said. "We took probably 30 to 35 depositions in the case, and videotaped many of them, which usually runs $1,500 to $2,500 every time you do that."
Demarest worked on virtually no other cases for five years and spent more than $1 million in her Dallas case, not including the cost of attorney time. Of that, $400,000 was out-of-pocket expenses and the rest was salaries and office overhead devoted to the case. After winning the $119 million verdict, the case went up on appeal and eventually settled for $36.5 million.
Kosnoff spent nearly $300,000 out of pocket on his first clergy case.
"It helps to have a good line of credit. I had my butt hanging out pretty far," he said.
He also associated with Anderson, partner in a 12-lawyer firm.
"He could not have sustained that and gotten those results," Anderson said of associating with Kosnoff on the Oregon case. "He is a sole practitioner working alone. He was unable to carry the risk and burden of hardball litigation."
Even after reaching a lucrative settlement in that case, Kosnoff has found taking on the church to be a tall financial order. He currently has a half dozen clergy cases in litigation and estimates he'll have another 15 to 20 by the end of the year. He's financing those cases by associating with other firms that have deeper pockets.
"They say, 'We'll give you all the financial backing you need,' because I've demonstrated to them that these cases are winners," he said. "I think the sky's the limit when juries hear the facts of the incredible reckless indifference to the safety of children."
Plaintiffs' lawyers contend the reason the cases cost so much is the standard church strategy to outspend the plaintiff. Kosnoff estimated the Mormon Church spent between $1 million and $1.5 million in attorneys' fees alone on the Oregon case.
Mathis said there is no attempt to spend opponents into submission, noting that he wasn't exactly showered with money when he tried the Dallas case.
"I found it not to be dissimilar to any client that I've represented," in the resources that were available, he said.
Small firms can't succeed in these cases without dedicating several staff members to each case.
When Anderson took on his first case against the Catholic Church in 1983, he had only five lawyers in his firm. "So it was myself, two lawyers and a law clerk who handled it," he recalled.
But now, with the proliferation of these cases and his reputation, the firm has grown to 12 lawyers. Every time a large verdict or settlement is reported, it results in many more calls, many more credible cases, which presents the possibility of yet another increase in staff and overhead, he said.
"When I take on a case I lead the litigation team, but I always have one other lawyer from my firm and if the case is out of state, I have local counsel, also," he said.
Freberg's Southern California case required the service of 30 subpoenas - and a staff to manage them.
"You need a good-sized staff to coordinate the witnesses and documents," she said, adding that she uses at least two lawyers and two staffers per case.
Demarest handled the Dallas case with only the help of a law clerk and a legal assistant. Garabedian was assisted by three others from his firm in the Geoghan case.
As a solo with low overhead, Kosnoff has more financial resources to devote to his cases, but it also means he doesn't have a staff to assist him. Yet, he has found a way to be successful.
"My approach is to collaborate and work with other lawyers," Kosnoff said. "I associate in another lawyer or contract out to another firm that does have staff and can do that."
Lawyers taking these cases are often saddled with the responsibility of playing surrogate counselor to the alleged victims who contact them.
"So many of the victims just want to have a caring person listen to what happened to them," said Freberg. "It's just a matter of spending time hearing them out and being sympathetic and letting them know that they're not the only ones - letting them know these feelings are common among other victims."
Even if she can't take an alleged victim's case, Freberg tries to offer helpful resources. She often refers prospective clients to a victim's assistance program that was established as part of the $5.2 million settlement she negotiated with the Orange County and Los Angeles dioceses.
"I try to direct them to get into counseling so that they can talk to someone who has talked to other victims, and that makes them feel safe," she said.
Some plaintiffs' lawyers say there's not much difference between handling these cases and the average tort case, but Freberg and Demarest disagree.
"It's not a typical tort case, the harm to the victim is tremendous," said Demarest. "You've got the medical issues of how to help the client, and what type of services they're going to need after the case is settled."
Both agreed that lawyers have to go one step beyond settling for damages and attempt to protect future congregations by negotiating new policies for handling abuse cases.
"With these cases I try to look at the higher cause and, when talking settlement, try to make them [think] in long terms," said Freberg.
In most cases, this includes a public apology, which, for some plaintiffs, is more important than the money. Freberg also tries to get the church to change its policies for handling sexual abuse allegations.
"Sometimes it doesn't work and the only thing you can get is money for the client and get them help," Freberg said.
Anderson does not take on a clergy sex abuse case unless he's equipped to take it through trial and the inevitable appeal.
"It is hardball litigation," he said. "You have to be aggressive, you have to be resolute, you have to be purposeful and you have to be uncompromising to ultimately get a measure of justice."
Lawyers must be "hardheaded, stubborn, and accept the potential for severe disruption of your financial situation," Demarest added. "They need to go toe-to-toe with the church and, if not, they need the help of an attorney who can. You have to be prepared to go down with the ship and convince the church you're willing to do that."
The lawyers said the cases took them to their emotional limits, and anyone who takes one on should be prepared for that.
"As a solo practitioner the case stretched me to the limit personally, financially and emotionally. It was a burden for my family to put up with me," Kosnoff said.
The litigation even crept into Demarest's dreams. One night she had a nightmare that a man was watching her sleep from outside the French doors that separate her bedroom from her sun porch. The man in the dream was very tall, and she felt it was the accused priest in her case whom she had not yet met. When she finally did meet him, he was indeed very tall, just as he had been in the dream.
A Network Of Small Firms
One way to battle the defense tactics is for lawyers to share their information with colleagues working on similar cases.
Lawyers often share the transcripts of depositions and copies of their complaints. Kosnoff also shares research he has gathered on the patterns and practices of handling abuse claims within the Mormon Church. This information can help prove punitive damages, he said.
Anderson makes the documents he has uncovered available to any lawyer on his side who needs them.
"We're constantly networking and getting calls from other lawyers asking for help or guidance," he said.
Of course not all information can be shared. Some documents are subject to protective orders, so lawyers can't pass around the actual documents.
"But nothing prevents us from talking about the content of those documents," said Kosnoff. "That way, lawyers in other cases will know which documents to request in their own discovery orders."
Kosnoff often communicates with lawyers in Southern California, South Carolina, Texas and New Jersey to share information on these cases. "There is a network of lawyers doing these cases. It's pretty small," he said, but tapping into it is the only way plaintiffs' lawyers battling church resources will be successful.
"I started doing it because it was the right thing to do. When you give, you get, and I'm starting to get back," he said.
Although the lawyers shake it off, enduring hate mail from the public and negative comments from colleagues can take its toll.
"I get hate mail from people and some ridicule from attorneys and judges but, largely, I get a great deal of esteem from them for taking on somebody no lawyer ever had in America," Anderson said. "In my office, I don't put up certificates and awards, I put up the hate mail I get."
But on the whole, there is far less negative fallout than one might expect.
"Frankly, I've always been known to have more balls than brains," quipped Anderson. "I've always represented the underdog, the unpopular, individuals who are disempowered...It was a natural decision for me."
Freberg said she didn't "advertise" that she was filing suit against the Catholic Church, so her other clients had no reaction to her taking the case.
"Maybe I should have thought about that, but I didn't," she said. "I was so concerned with trying to expose what had happened...it probably put blinders on to the problems that could have arisen."
As a solo, Kosnoff said his firm is too small to be affected by suing the Mormon Church in an area where that faith has many followers.
While preparing the 1997 case in Dallas, Demarest endured only needling from her law partners.
"They would come in and laugh at me and tell me I was crazy...and how silly I was to be working on a case that never would turn out to be anything," she recalled. "That was a test of my dedication to being a plaintiff's attorney. It's easy to be a plaintiff's attorney when you take the risk and get the reward. It's difficult to take the risk without knowing the reward would be there.
"I was on my own. I paid my own way in the case. It wasn't going to impact them financially one way or another," she continued. "It was a difficult decision to make, but once it was made, I really never looked back. I was willing to accept the consequences."
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