Stupid Lawyer Tricks – Rape edition

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Stupid Lawyer Tricks - Rape edition

Invariably, when people read about frivolous or silly legal claims, they ask: What was this person suing for that time? You never seem to wonder what kind of idiotic defense was put in place?

Because idiotic defenses don’t do the papers. Until they do.

This week the NY Post made an ugly headline about my hometown high school:

New Rochelle High School blamed the girl for her own rape, the lawyer says

Hold the victim responsible for her own rape? Is that what high school did? The high school my kids just graduated from?

Well no The lawyer did that, and the school is now paying the price. I know because I pulled the answer from the electronic file and saw that the review only had a signature from the attorney – no one from the school district.

The Post just pulled that nugget from an affirmative defense that was addressed in this response to the suit.

Affirmative defenses for the non-attorneys who have set themselves up are usually these types in a personal injury case (of which this is one):

  • Failure to bring an action in due time (limitation period);
  • Failure to state a claim (fail to make reasonable claims that, if true, would result in the case being dismissed)
  • Allegation of comparative negligence (plaintiff was partially to blame and any judges’ award should be reduced by a reasonable amount – think stumbling on a broken sidewalk)
  • Taking risks (like being hit by a foul in a game – this was a sporting event, the event was a foreseeable risk and the claimant is 100% excluded from the lawsuit)

There is obviously much more to a laundry list of defense lawyers who select and cut and paste from the details of a case.

What did the attorneys claim as an affirmative defense on behalf of the high school? Except that the victim was to blame:

That was just stupid. Someone went through the laundry list of possible claims and said the rape victim was responsible for an attack?

And you know that this was pointless cut and paste because “risk taking” was also introduced. However, when New York passed a Comparative Negligence Act (CPLR 1411) it erased the concept of risk-taking as an absolute barrier to recovery except for the limited cases of sporting events. (See Trupia versus Lake George Central School District). It wouldn’t apply here in any context.

(The actual facts of the incident are unknown to me beyond the Post’s story and are not put up for discussion here.)

Now I know what some people think – what’s the harm in throwing crap in “just in case”? And the answer is threefold:

First, there is no real benefit as pleadings (e.g. a reply) can be changed and such changes must be approved. Even until the time of the negotiation. Even in court. One of the share motions at the end of a trial says, “I’ll change the pleadings to match the evidence.” Sometimes a judge asks if you have anything special in mind. Sometimes not.

Second, the lawyer gave the press a headline to the detriment of the client. One thing that a lawyer has to keep in mind with every public filing: How can the press pick up and misinterpret this statement in order to embarrass my client? And blaming someone free of charge for saying she was damned raped fits that bill perfectly.

Third, and possibly the worst. During the trial, an accomplished plaintiff’s attorney will read the defense and ask the school’s witnesses why they accused the victim. There is only one answer that can possibly be given: the lawyer did it.

(I did this once when a patient was burned during an operation: how, dear doctor, was the patient’s fault that she was burned during anesthesia?)

And when that happens, everything else the lawyer says will be looked sideways by the jury. If the lawyers blame the victim, why do they believe something they say?

It was like kicking football in your own goal.