Criminal Defense Lawyers

Why Settling May Be Better Than Litigating Employee Adult Survivors Act Lawsuits: How an Attorney Can Advise

Why Setting May Be Better Than Litigating Employee Adult Survivors Act Lawsuits: How an Attorney Can Advise

The recent passage of New York’s Adult Survivors Act opens a one-year window for survivors of sexual abuse to file civil lawsuits, regardless of how long ago the abuse occurred. This new law will likely lead to an influx of litigation against employers whose employees committed sexual misconduct. For attorneys representing clients in these cases, advising them whether to litigate or settle can be a complex decision with many factors to weigh. Here is an overview of some key considerations:

The Emotional Toll of Litigation

For many survivors, the prospect of a long, drawn-out lawsuit can seem daunting. Lawsuits require survivors to relive traumatic experiences through depositions, interviews, and cross-examinations. This can take an emotional toll and lead to further trauma. Settlements allow survivors to move on more quickly without the constant reminders of litigation. As one survivor put it, “I just wanted it to be over. The thought of having this drag out for years in court was too much to bear.”

Uncertainty of Trial Outcomes

There is always uncertainty in how a trial will unfold. Survivors run the risk of losing at trial after the emotional difficulties of litigation. Settlements provide guaranteed compensation without the gamble of trial. An attorney can advise clients that while they may be confident in the strength of the case, the unpredictability of jurors and judges is outside of anyone’s control. Pre-trial settlements allow clients to avoid an “all or nothing” verdict.

Confidentiality Concerns

Many survivors want to avoid public trials to preserve their privacy. Settlements often come with non-disclosure agreements that prevent details of the case from becoming public. An attorney can assure clients that settlements allow them to resolve matters confidentially. This gives survivors control over who learns about the abuse and prevents traumatic experiences from being aired in open court.

Faster Access to Compensation

Lawsuits can drag on for years, especially if appeals are involved. Settlements provide faster access to compensation when survivors need resources for medical treatment, counseling, or other support. Rather than waiting through trial delays and appeals, settlements deliver results more quickly. An attorney can advise that while settlements may be smaller than potential jury awards, the guaranteed payout comes faster.

Avoiding Retaliation Concerns

For survivors still employed at organizations where abuse occurred, filing lawsuits can raise fears of retaliation. Settlements resolved before lawsuits are formally filed can reduce this risk. Attorneys can negotiate confidential settlements that protect clients’ identities. This allows clients to avoid exposure that could lead to on-the-job retaliation by supervisors or colleagues.

Lower Financial Risks

Litigation is expensive, with costs for depositions, experts, exhibits, and other needs. Attorneys working on contingency must cover these upfront costs. If cases are lost at trial, both the survivor and attorney lose this investment. Settlements avoid these financial risks, ensuring attorneys can recover their expenses. For clients without financial resources, this also prevents the risk of owing litigation costs if a trial is unsuccessful.

Accountability Through Non-Monetary Terms

Settlements can include non-monetary terms that promote accountability, such as policy changes by employers. These terms can address systemic issues that enabled abuse. Litigation focuses on monetary damages, but policy changes cannot be mandated by courts. Creative non-monetary settlement terms can be negotiated to serve a survivor’s sense of justice.

Avoiding the Statute of Limitations

Prior to the Adult Survivors Act, many survivors were barred from litigation by the statute of limitations. Settlements allow survivors to resolve matters quickly and avoid potential disputes over whether their case meets the statute of limitations. An attorney can negotiate a settlement that circumvents limitations concerns entirely. This gives clients peace of mind about recovering compensation.

Tax Advantages

Unlike jury awards, settlements are not taxable as income. This provides a financial advantage for clients who can keep a larger portion of settlements. Attorneys should inform clients that pre-trial settlements offer tax benefits compared to litigation.

The Ability to Move On

For many survivors, their priority is to move forward with their lives after abuse. Settlements allow them to resolve legal matters privately and quickly. Litigation can keep survivors entrenched in the past and focused on abusers. An attorney can advise clients that settlements often represent the first step toward healing and closure. Though litigation seeks justice, settlements provide faster resolution.

The Bottom Line

While the potential value of jury verdicts is higher, pre-trial settlements provide guaranteed money without delays or emotional tolls. An attorney’s role is advising clients on which path serves their needs best. For many survivors, quicker closure and confidentiality make settlements the preferred option over risky, prolonged litigation. Though the choice depends on each client’s circumstances, settlements often align with survivors’ top priorities.

How Attorneys Can Advise Clients on Settlements

Here are some tips for attorneys consulting with clients about pursuing settlements:

• Explain the legal process and timeline of litigation so clients understand what to expect. Outline the risks and benefits of going to trial versus settling.
• Ask clients to articulate their goals and priorities. What outcome would bring them satisfaction and closure? Use this to assess whether settlements or litigation better serve their needs.
• Describe the confidentiality protections of settlements that allow clients to resolve matters privately.
• Explain how settlement funds can be used for expenses related to abuse, like counseling and medical costs.
• Develop a range of settlement options to meet client needs through different monetary and non-monetary terms.
• Advise clients on the faster access to compensation through settlements compared to waiting on litigation.
• Be transparent about your firm’s litigation costs and the financial risks of losing at trial.
• Explore creative non-monetary settlement terms beyond just financial payouts.
• Outline how settlements avoid statute of limitations issues and provide tax advantages.
• Emphasize that while you believe in the strength of their case, trial outcomes are unpredictable. Settlements provide certainty.
• Reassure clients that there are no “right” or “wrong” choices. You are there to guide them toward the path that best serves their needs.
• Avoid pressuring clients toward either choice. Make space for clients to think through the options and voice their preferences.
• Be supportive of a client’s choice to settle or litigate. You are there to advise, but they must decide what is right for them.

Settlements are often optimal for clients seeking privacy, closure, and faster results. By outlining the considerations and providing guidance, attorneys can ensure clients make informed decisions about resolving Adult Survivors Act lawsuits.