Host Sean Harris talks with OAJ member, Konrad Kircher about sexual assault cases, how they differ from personal injury cases, and areas where the law can improve for sexual assault survivors.
Sean: Hello, I’m your host Sean Harris. This is episode 44 of Civilly Speaking brought to you by the Ohio Association for Justice. Today’s March 19th. I’m here with our guests Konrad Kircher from Lebanon, Ohio. Konrad thanks very much for joining us here on civilly speaking.
Konrad: You’re welcome. Glad to be here.
Sean: And even though you’re from Lebanon I should say through the magic of technology you’re not actually in Lebanon Ohio right now.
Konrad: No. But please don’t disclose where I am because the office may think I’m around there.
Sean: Very good. So our topic today is sexual assault cases and I know for a lot of our members they probably assume that a sexual assault case is just kind of a subset of a personal injury case and you know some kind of general garden variety P.I. claim I suspect that’s not true that there are some pretty important differences. Tell us about that.
Konrad: Yeah they’re vastly different. And you know the practitioner has to keep that in mind when dealing with the client in a personal injury case you’re dealing almost entirely with physical injuries. Now there may be a psychological component. You know maybe the driver of the car gets nervous when approaching intersections and is afraid to drive those are legitimate issues, but overwhelmingly the personal injury cases deal with physical injuries. Well in a sexual assault case it’s not that way. The injuries are overwhelmingly psychological. And you know they’re based on deep rooted violations of the person’s psyche. It’s often from a betrayal of trust or exploitation of a position of authority and those amplify the effects on psychological damages. So you know sometimes in a personal injury case you’ll hear that you’ll hear the injured person say you know this isn’t about money. Well most of the times it is about money but if a sexual assault survivor says that you can pretty darn well sure bet that it’s that that she or he is correct it’s not about the money. It’s about validation because you know these survivors are trying to overcome shame and guilt and lack of self-esteem and the money they get from a settlement or an award is simply an indication or a representation of that validation and that’s so important to them.
Sean: Talk to us about the causes of action in a civil case. I take it these are primarily intentional torts.
Konrad: Yes, it’s typically a battery, a battery is the offense of physical touching without consent. We often use the term assault in a civil context it’s really not the right term to use but more people understand what assault means and battery. So battery is the primary cause of action. There may also be a claim for intentional infliction of emotional distress depending on how the perpetrator then deals with the aftermath of the battery. You know I always look for those are, those are the claims we make against the perpetrator. Now I’m always looking for a third-party defendants. Maybe it is, maybe this was a teacher and so is there a claim against the school system under Title 9 or some other cause of action. If this was a man was the wife aware of what was going on and failed to prevent it and would there be a negligence claim against the spouse. Youth organizations. So there may be negligence causes of action against third parties as well.
Sean: And of course, the hope there is to be able to find insurance coverage to be able to compensate the plaintiff.
Konrad: Yeah that, that’s always that’s always a benefit of course for compensation. But you know I’ll tell you that it does help the survivor to know that the perpetrator is paying something if there’s not insurance again that’s part of the validation process. But you’re right if there’s no insurance sometimes the cases are just not financially viable.
Sean: That’s a good point I suppose probably regardless of the amount from the victim’s perspective to have the perpetrator pay something as an admission or as you say validation is probably as important or more important than the recovery to them.
Konrad: Yeah. You know I’ve had several cases where the perpetrator was unable to pay a lump sum so they had to pay monthly checks and a few of my clients have really really liked that because they know that every month when that perpetrator writes that check the perpetrator is thinking about what he did to the survivor and the survivor loves that control. But I’ve also had others say no I don’t I don’t want anything more to do with him. I want him to pay me a lump sum whatever that is and then I want to be done with him. So you know there are two different mentalities.
Sean: You know while we’re talking about damages I just wanted to pick your brain on the subject of punitive damages and whether you alleged those in these cases and the reason I ask I was talking with a friend of mine at Winter Convention who raised this idea that gosh if you even though we’re all kind of taught you know in law school to make every claim for as much damages as you can the downside in Ohio to pursuing punitive damages is number one you know it’s going to be automatically bifurcated for four at least for discovery and for trial. And if you don’t plead them then you may be able to at least nibble around the edges of some otherwise wrongful or punitive conduct as part of the compensatory trial.
Konrad: Yeah I still do not have a firm opinion. I always allege punitive damages but if there’s a possibility of insurance coverage I also make sure that there is an alternative cause of action for negligence that would trigger the insurance coverage. I just had a trial about a month ago where I did obtain punitive damages. The trial was bifurcating and I think it worked to my advantage in that case that the case was bifurcating because when the jury went back to deliberate the first time on compensatory they weren’t aware that there was going to be a second bite at the apple. So I think they were angry they were angry enough at the perpetrator that their compensatory damage award was probably influenced by their disgust with him. So they came back with a compensatory award and then the judge had to say well you’re not done yet. You’ve got…
Sean: Round two.
Konrad: Yeah I’ve got round two and the defense attorney and I both decided we were not going to present any additional evidence we were not even going to argue we were just going to have the jury read, we were just going to have the judge read the instructions on punitives and send the jury back because it was late in the day. It was on Valentine’s Day and we did not want to risk them being any angry with their faces when they when they heard that their job wasn’t done yet we’re very disappointed.
Konrad: So, they went back and they came back with a fifty thousand dollar punitive damage award and an award of attorney’s fees. The problem is that under tort reform there’ the law that says that punitive damages cannot exceed 10 percent of the net worth of the individual and that fifty thousand may be reduced to zero.
Sean: Yeah that’s probably a good strategic decision on your part not to hold the jury there longer on Valentine’s Day less they try and find a way to award punitive damages against you the lawyer.
Konrad: That’s what we were concerned about.
Sean: Talk to us Konrad about experts and how what kinds of experts you use and what are necessary in cases like this.
Konrad: The most important expert is a psychologist who is very familiar with sexual abuse effects because a challenge in this in a case like this is having a jury understand what all these psychological damages mean you know in a in a personal injury case it’s easy to prove a broken bone or a herniated disc you’ve got x rays, a person can explain what they can’t do but in a personal injury case when you get to pain you know you always have to have your client be very explicit about their pain, they can’t just say well I hurt all the time. They have to give examples that get that across to the jury. Well It’s similar in a sexual assault case where you’ve got to have the jury understand what these psychological damages are. So, a psychologist who can explain the violation of trust and the depression that a survivor goes through when they question whether it was their own fault, when they feel shame from what happened when, they can’t tell people what happened to them. You know the daily effects of the depression they think these survivors sometimes can’t get out of bed. They go on binges of substance abuse they self-harm and then a good expert will project to a jury what this survivor is going to face at different stages of their life for example when they start to have intimate relationships healthy intimate loving relationships the complications that the survivor is going to have and the hurdles that the survivors is going to have trying to be intimate and loving or in the employment context let’s say it was a female survivor who was abused by a male authority figure perpetrator. Well when that girl goes to get a job and she’s got a male boss she’s going to have struggles. She’s going to have hurdles and developing a good working relationship with that supervisor. When the person has children the hyper vigilance that the parent is going to go through that the parent’s survivor when raising their own children. So, a psychological expert is extremely important and they can do there’s a lot of valid testing that a psychologist can do to try to have some objective findings to support their opinions because some jurors are going to be skeptical about psychological mumbo jumbo as they see it. So, if the psychological expert can do the MMPI the Minnesota Multiphasic Personality Inventory or trauma scales and Marwan and so forth, these are tests that the survivor takes and a lot of them are multiple choice or matching words and stuff and they are there are triggers that can identify when a person is malingering or over exaggerating. So, there are guardrails for these types of tests but they help a psychologist testify as to what these damages are. So that’s the most important expert. Other experts if it’s a school case you’re going to need someone with an educational expertise who can identify what red flags the school system had about this teacher before he offended. If it’s a youth organization like the Boy Scouts you may want to have a, If it happen in a campground a camping expert. So, there are standard of care experts that are also important. And finally, one that should not be overlooked is an economist who can testify about lost earning capacity. I had a great case a few years ago where my client was a female in high school who wanted to be a chef and full scholarship to a culinary college but in high school she was exploited sexually by her culinary teacher and after that she could no longer be in a kitchen with male authority figures so she quit. She got out of wanting to be a chef and she after a nervous breakdown, she got into nursing and she became a nursing assistant. So, my economists projected what she would have made through her working lifetime as a chef compared to what she’s going to make through her working lifetime as a nursing assistant and the differential was quite significant and helped us to get that taste settled.
Sean: And I take it these the psychologist experts you’re not relying necessarily on a treating psychologist you’re seeking out and hiring your own.
Konrad: I usually hire my own forensic evaluator expert witness and there are a couple of reasons for that. Number one they’re more accustomed to testifying in trial, but also, I don’t want to harm the therapeutic relationship between my client and her treating psychologist because once a treating psychologist becomes a witness and in a court case there’s some damage to that therapeutic relationship because the psychologist may have to say some things that the client shouldn’t hear.
Sean: That’s a good point. So, as we’re sitting here today in 2019 looking forward if you could wave a magic wand and align Ohio law with how it should be or would be more supportive for sexual assault survivors and their claims. How would you do that?
Konrad: There are a couple areas that really to improve and the first on is the statute of limitations. In 2006 we were successful in passing a new law which made some improvement a survivor, a child who has suffered sexual abuse has until the age of 30 to bring claims and the reason that it’s 12 years rather than two for a personal injury case is that it takes a long, long time for a survivor of child sex abuse to come to grips with what happened to them. But it still needs to be longer many other states have longer statutes of limitations or have even passed windows where there is a one- or two-year period during which any survivor of sexual abuse can bring a lawsuit and not be barred by statute of limitations. So that’s one. There is one specific area where I think and I’m going to get started on this effort with some clients and that is to have the statute of limitations for a civil claim told during the period that a criminal prosecution is ongoing and there are a couple reasons for that. Number one prosecutors do not want victims of sex cases to be filing civil lawsuits while the criminal case is going on because that’s free discovery to the to the defendant. And it makes the victim look like they just want money that can be used against them in the prosecution and so victims’ advocates and prosecutors are very, very poor at advising survivors that they have civil claims and often survivors have come to me after the criminal prosecution said well now I want to do a civil case and I say I’m sorry it’s too late. If you’re an adult there’s a one-year statute on a battery claim so other states have passed that and then finally the third thing is damages caps on cases arising out of sexual assault. There is a bill pending it’s the second time it’s been introduced to remove damages caps from civil claims arising out of rape. If you’re telling a sexual assault survivor that their pain and suffering their general damages their noneconomic damages are limited to three hundred and fifty thousand dollars for a lifetime of effects that is extremely insulting and it’s revictimizing it’s not the validation these people need it’s revictimizing so that that bill definitely needs to pass.
Sean: Especially as you say when compared to an injury claim where you might have lots of medical bills which are unlimited and are the primary driver in where you’re talking about psychological injuries by definition those are capped and those are your primary damages.
Konrad: Exactly. Exactly.
Sean: Konrad this is fascinating. Thanks so much for being here today.
Konrad: My pleasure, I enjoyed it.
Sean: And thank you to all our listeners out there if you like our show and want to learn more check out civillyspeaking.com or please leave us review on iTunes and we’ll see you the next time here on civilly speaking.