Important Information
From our support work over the years Beyond Abuse is aware of many victims-survivors who have engaged legal representation to assist them. Some have reported positive experiences, however some unfortunately have reported negative experiences.
Beyond Abuse has observed certain common features in the situations where victims-survivors have reported negative experiences with regards their legal representation.
Learning from this, Beyond Abuse offers the following information for any victim-survivor to consider when they are contemplating engaging a legal representative or when communicating with a legal representative.
Beyond Abuse supports all victim-survivors accessing appropriate legal representation and obtaining appropriate legal advice.
For ethical reasons Beyond Abuse does not recommend any particular legal representative. It is a personal choice for each victim-survivor as to who you select as your legal representative.
Common issues we have observed where there is dissatisfaction include:
- Survivors feeling disempowered when communicating with their lawyer;
- Power imbalance between lawyer and client with client feeling unable to raise questions or concerns;
- Challenges handling conflicts that may arise between client and lawyer – no clear pathway for resolving conflict;
- Clients feeling trapped once they have entered into an agreement with a lawyer;
- Clients not understanding Cost Agreements they have signed;
- Challenges or legal obstacles not being disclosed until after the client has signed with the lawyer, then being advised of serious matters that the client feels they should have been told about prior to signing (for example that time limits existed);
- Differences of opinion that may arise between client and lawyer such as what the client defines as an appropriate outcome and what the lawyer defines as an appropriate outcome;
- Exacerbation of the client’s trauma during the legal process or because of the legal process, how this may impact decision making, communication and the lawyer’s capacity to work with this;
- Trauma in childhood can disrupt the development of a healthy ability to assess relationships involving trust and can result in survivors either being perpetually distrustful or the opposite, developing a form of ‘learned helplessness’ and relying on persons even if those persons are not trustworthy. This can be a barrier to effective communication between lawyer and client and a barrier to effective decision making during the course of a legal matter.
Therefore the following are some helpful tips to hopefully address some of these issues and aid better communication between client and lawyer for the purpose of ultimately better representation of the client and achievement of better outcomes for the client – with less stress, trauma and conflict.
Awareness and Understanding
It is healthy for the client to commence with an awareness and understanding of:
- What is your objective, what are you trying to achieve
- Limitations in the law – what the law can offer and what the law cannot offer
- Your health care and personal supports though the process
- Boundaries – lawyer versus health care provider versus family/friend
What is your objective, what are you trying to achieve?
It is healthy and wise to have a think about what outcome you want to achieve before taking action. It may help to speak with a trusted loved ones about this. Having a clear idea of your objective before starting any process will make it easier for you to communicate with specialists (lawyers, health care supports, employers, etc) and to make decisions at critical times along the way. Also, to know when you have achieved that outcome.
Are you trying to obtain:
- Apology
- prosecution of offender and safety of other children
- access to health care
- access to remedial education
- access to financial reparations
- changes to systems or policies
Limitations in the law
The law and legal processes (criminal and civil) are only one tool for obtaining certain outcomes such as justice. However, they have limitations and are imperfect.
It is healthy to be aware in advance of some of the realities to better prepare yourself for the journey.
The law can offer certain narrowly defined outcomes. For example, criminal prosecution may result in a finding that the perpetrator is guilty (it may not). It may incarcerate the perpetrator (it may not) and may result in certain child protection restrictions on a convicted offender (eg loss of child related employment, sex offender register restrictions, etc).
Civil law may result in a negotiated or court imposed ruling for the provision of financial reparations.
The law cannot undo the crimes; the law cannot make an offender genuinely remorseful where they refuse to be; the law cannot heal a person on its own or resolve ongoing symptoms (this requires health care).
Health care and personal supports:
Legal processes are almost universally stressful to go through, even where they result in a feeling of vindication and justice at the conclusion. So it is important to prepare appropriately by having appropriate engagement with health care and identifying healthy trusted support networks (family, friends) to assist when things are difficult.
It is healthy and wise prior to commencing legal processes to establish an appropriate health care network according to your needs. For example it may include:
General Practitioner
Psychiatrist
- Psychologist
- Addiction medicine specialist (where relevant)
Often survivors require or benefit from a structured team approach to health care, particularly to provide support during times of increased stress such as any legal proceeding.
Also it may be appropriate to consider matters such as impact on employment and the need to take time off or reduced hours to consider management of health and prevention of health deterioration.
Boundaries
It is helpful for victims-survivors to be aware of healthy boundaries during any legal proceeding, including an awareness of the different roles of specialists supporting you. Beyond Abuse has seen many instances where boundaries have become blurred and it has caused or exacerbated complications in the lawyer – client relationship.
Your lawyer is your lawyer; their role is to provide legal advice and ensure you have a good understanding of your legal options.
They are not your support person, case worker, health practitioner or friend. Those roles should be performed by those people.
Empowerment
Remember, YOU are selecting the law firm not the other way around. The law firm will be effectively employed by YOU.
It can be very distressing choosing a lawyer, telling intimate details of the abuse to a stranger, and it is a commonly stressful time.
Suggested questions when choosing a lawyer are:
Experience:
- How many cases have you represented?
- What were the results?
- What are the largest damages you have achieved for your clients?
- Are you prepared to take a matter to trial if unable to resolve at mediation?
- How many cases have you taken to trial? Did you succeed at trial?
- Is your business model based on settlement at mediation even if it requires substantial discount of damages?
- Have you previously represented a case against the institution I was abused?
- Who will be the contact person for my case (Partner, Associate, graduate, paralegal)?
Conflicts
- Do you, your firm or any person in your firm have a conflict of interest in relation to the respondent institution?
Examples of conflicts may include:
- previously represented the other side in any matter
- hold an office in the institution (on a school council, church board, etc)
- worship in the congregation for the other side
- have children attending schools run by the other side
- are alumni of institutions run by the other side
- any other personal or business relationships with the other side
Costs and Cost Agreements:
- In a “no win-no fee” agreement, what is the definition of “win”?
- EG is it simply the other side make any offer? Or can I define “win” as an offer not below a certain quantum?
- Who retains the power to make decisions – am I in charge of case decisions as the client, or am I required to accept all advice of the lawyer under the cost agreement, even if I disagree?
- Can we agree to different terms of the Cost Agreement if there are some I am uncomfortable with or do you refuse to be flexible about the terms of the Cost Agreement?
- What is the maximum costs you will charge me, in real terms and as a percentage of any settlement?
- What are the different types of fees and costs I may be billed: lawyer fees, barrister fees, costs for experts, court filing fees, office admin costs, etc and how are these treated under the Cost Agreement – what will I be liable for?
Claim Farming
Beyond Abuse supports legislation which protects vulnerable persons including survivors of child abuse, from all exploitation, including exploitation from unscrupulous legal practices.
Beyond Abuse is aware of a practice, which we understand has been used by law firms to further exploit victims, which is the practice of convincing or inducing victim-survivors to enter into a financial lending arrangement (chosen by the law firm) to cover costs such as disbursements (for example expert reports, barrister fees, etc).It is our understanding that previously these sort of costs would ordinarily be held over until completion of the matter and only become payable upon successful completion of the matter(and sometimes not payable if the victim I snot successful).Instead, under a finance arrangement the service provider (medical expert, barrister, etc) is paid upfront by the finance provider (so their risk is reduced to zero) and the victim inherits an inflated bill at the conclusion of the matter as now they are required to pay the underlying costs as well as exorbitant interest, as the money has been ‘borrowed”
Beyond Abuse are also away of a very concerning practice that is being used by unscrupulous law firms and is known as “claim farming”
Observed as having the potential to be particularly reprehensible the evolving business of ‘survivor farming’ or ‘survivor advocacy’. This is the name given to claim farming activity in relation to institutional child sexual abuse survivor claims, where behaviours of claim farmers have extended beyond cold calling to targeting abuse survivors specifically by approaching particular communities to ‘sign people up’ without also informing them about the existence of other free services available for abuse survivors.
Click here to learn more about claim farming.