CIVIL LAWSUITS

[falconstar]

I am, as a few of you, (particularly old-timers and Fl Straight activists will know) a long time member/lurker.  I am also a clinical social worker, licensed child care administrator, youth advocate, and private investigator.  I have 30 years experience running non-coercive, non-punitive, programs for kids in trouble.  (Yes, there are such things, but so very few and far between)

I am now a private investigator who specializes in institutional neglect and abuse investigations.  

Day after day, month after month, I read postings about physical and emotional abuse, victimized (and occasionally murdered) kids, confused parents, and an industry which is out of control and interested in only profits and power.  

Only the newest and most naive among us believes that state regulatory agencies can adequately protect kids in these programs.  And we know that many of these programs go mobile, or outside the country, or cloak theselves as religious institutions to avoid even the minimal regulatory influences.  

One of the most powerful advocacy tools, in my opinion, are civil lawsuits that hold the owners of these programs accountable in the only way they understand,... financially.  

However, unless the victim secures the services of a specialist, a personal injury trial lawyer who has years of experience with this kind of case, and one who will consider, (secondly to the needs of their client), the systemic impact of their action.  

All too often a general practice lawyer, or a personal injury lawyer with no experience in this field, will undervalue the case, will not have the skill or resources to adequately prosecute the case, so will settle "cheap and quick".  This does nothing to effect change in the industry.  Owners see the occasional lawsuit as a "cost of doing business".  In fact, poorly prosecuted injury cases tend to become part of the problem, not the solution.  

So, if you or a loved one, has been victimized by a program, before you hire an attorney please consider the following:

1) Act quickly.  Most jurisdictions have "statute of limitations" laws that put a time limit on how long you can wait after an injury to file the case. (This is often two years, sometimes less) Don't let this deter you from inquiry because there are legal exceptions to this that only a good lawyer will know.

2) Do your homework.  Don't hire an attorney who requires you to pay anything.  (Good personal injury lawyers are "contingency fee" lawyers who take a percentage of the judgement or settlement). Find a lawyer who has won judgements at trial and has successful experience prosecuting institutional abuse and neglect cases.  If possible, find a lawyer in a large successful firm with significant financial resources.  (These cases can be very expensive to prosecute adequately, occasionally requiring hundreds of thousands of dollars.)

3) Keep records.  Write down, in as much detail and with as great accuracy as possible all the who, what, where's, whens and hows of your experience.  Names (and as much identifying information as possible) of staff, and other clients.

4) Be persistent.  Because one firm turns you down, does not mean that you have no case.  Keep trying.  (If you have had careful, attentive reviews from at least three firms meeting the criteria in 2) above, and have been turned down, it may be time to concede there is no prosecuteable case.)

How the lawyer will evaluate the case:

1) Are there severe injuries or death?  In the case of psychological trauma, are the effects provable, long lasting and debilitating.  Obviously the more severe the injury, the greater the value.

2) Is the case provable?  Are the injuries an obvious result of neglect or abuse?  Will experts in the field be able to testify that the program fell substantially below the "standard of care".  Is there adequate documentation or witnesses.  Is the victim or victim's family credible and unimpeachable?

3) Are there "recoverable assets" of sufficient amounts to justify the prosecution of the case, insurance, cash or property.  A good lawyer won't be in business long filing million dollar lawsuits against "mom and pop" group homes.

4) Is the case legally valid?  Does the filing meet statute deadlines or are there facts that allow exceptions?

I hope this is helpful to those of you who are considering legal action. (or know of someone who is.)  I am available to answer specific questions, but remember, I'm not a lawyer, all I can do is give you general advice.

http://www.institutionalinvestigations.com/

[Anonymous]

You can write all this,but you could be a kid?

[falconstar]

Could be.  Sometimes wish I was again.  Just click on the website and you'll see who I am.

[Anonymous]

Just to let you know - it's difficult to get lawyers to take the cases. There are many loopholes in the laws protecting children in residential care. These loopholes can eacily be used as a defence for any type of litigation. Look at the verdicts for the children who died. Even with deaths the cash verdicts are not overwhelming. Also jury sentiment may be towards the facilities rather than the children - particularly in states like Utah and Montana where these programsa are prolific. Most of the facilities will do a good job at using the "lying, manipulative, brat" defence. It happens everytime there's a problem or a death. When the 13 year old was killed due to illegal restraint this defence was used as well.
There are also loop holes in mental health laws. For instance with regard to forced drugging (chemical restraint) there is a loop hole that allows them to do this without the consent of child or parent if they feel there is an immediate danger to staff or patient. The list goes on and on. These loopholes seriously weaken the abilitiy of anyone to successfully sue a program. It is obvious the industry has had their hand in the legislative cookie jar - molding the laws to protect their buisinesses.

Look at the laws in Utah - it's very eacy to see the loopholes.

[falconstar]

The problems you describe are certainly there.  But as I mentioned, I believe the biggest problem is timid prosecution by attorneys who do not have the experience required.  They don't know all the "ins and outs" of these cases and often accept settlement offers that would be considered an insult by others with more experience.  

Any lawyer can tell you why he can't adequately prosecute a case, the good ones have the motivation, experience, knowledge, and maybe most importantly, the resources (they can be very expensive) to go after these owners.

[Anonymous]

On 2005-07-22 08:28:00, Anonymous wrote:

"You can write all this,but you could be a kid?"

Thats a pretty nice website for a kid just joking around.

Why so untrustworthy? Why do you trust programs?