It's been said that "a journey of a thousand miles begins with a single step." For many sexual assault survivors, that first step - coming forward to tell your story - is often one of the most critical, yet difficult to take.
When you contact a sexual assault lawyer for an initial consultation, you set in motion a journey that can take many directions; but, ultimately, one which we hope can conclude with you finding justice for the harm done to you.
It's important for survivors to realize that the journey you are starting is not a short or easy one. But to ensure you get justice, it is important to do it right - and doing it right takes time.
In previous blog posts, my colleagues and I have written extensively about the decision-making process survivors undertake as they decide if and when to come forward. In this blog post, I'd like to outline some of the steps in a civil lawsuit that might follow that momentous first step. I describe what type of information and documentation is required for your case, what an investigation by a sexual assault lawyer looks like, and finally how we assess fair compensation for your losses.
#1 - The Initial Consultation Phase.
Like many other sexual assault lawyers, the first step when you contact Jellinek Ellis Gluckstein will be to have a free, no obligation initial consultation, which we offer to prospective clients.
You will have a chance to speak with our client intake specialist, who is a trained social worker. She will collect general information and listen to your story. She will then share your story with our team of sexual abuse lawyers. If we are able to help, she will arrange a time for one of our lawyers to speak with you. Not everyone has the option to sue civilly, and therefore it may not be necessary for lawyers to become involved. However, even if a civil lawsuit is not possible, our client intake specialist may be able to suggest other potential options.
During the initial lawyer call, we will go over your options for civil justice. The primary way our lawyers can help you is by seeking compensation. If this option is right for you, our lawyers will discuss the steps necessary to get you a fair and just result and offer to represent you in a lawsuit if that's the path you choose.
At all times, our team wants to ensure you are taking care of yourself. The civil suit process can be long, daunting, and tiring. Our lawyers will often suggest additional resources you can draw on as you go throughout your journey towards justice.
We recognize and respect that taking the first step towards justice is a big one. In some cases, you may have thought about taking this step for a long time. You may have gone through counselling, attended support groups, and have discussed your story with other people before. In other cases, we are sometimes the first person you ever trusted with the details of your abuse. As trauma-informed lawyers, we understand that being empathetic, mindful, and taking our cues from you is essential to building trust and mutual respect.
#2 - The Investigation Phase.
If you choose to proceed with a lawsuit, the next step will be for our team to investigate your claim. A thorough investigation, especially to gather evidence, is necessary before your lawsuit can begin.
The investigation phase starts by getting to know more about you and your life to date. Your lawyer and clerk will work with you to collect as much information about your life as we can, including having at least one long meeting with your lawyer for a life 'history interview'.
This process is not necessarily a "one and done" discussion. Sometimes we will need to have a few discussions with you about your case and your life. It is important for us to get the details right before the start of the lawsuit. This can also take some time.
We know for a fact that traumatic experiences can lead to gaps or blocks in a person's memory. The justice system is growing more aware of the complex role of trauma on memory and credibly assessment every year. Your lawyer will take care to get your story right the first time, which ensures you have a strong case from day one.
A note on the role of memories in your case - sometimes, survivors worry that their inability to remember events clearly, or to remember details well, will prevent them from seeking justice. This is not necessarily true. A survivor's memories are just one type of evidence presented during a case.
Other forms of evidence can help support your memories. These can include witness testimony, but also medical expert assessments, school records, employer references, therapy notes, and statements from friends, family, and spouses.
In historical cases of sexual assault or sexual abuse, we may try to identify and locate other witnesses or survivors to corroborate the abuse. We may need to examine archived or historical institutional files to look for patterns of abuse, neglect, or institutional mismanagement. We also obtain certain historical records to verify certain details of your story. There are a number of ways we can support or bolster your memories. Your lawyers will work you to get this, and these efforts can strengthen your case significantly.
A lot of work must be done before starting a lawsuit. The investigation phase is a critical part of the justice process. It ensures you have all the evidence needed to strongly support your case.
#3 - The Case Review and Survivor's Decision.
At the conclusion of the investigations phase, you decide how you wish to proceed.
To assist you in making your decision, our lawyers will assess the evidence collected and provide advice on whether there is enough strong evidence and whether your claim has a chance of success. In some cases, our opinion will be that the evidence is not strong enough to succeed in a lawsuit. While it can be disappointing to learn, our lawyers may be able to suggest alternative options for justice. These include lodging a formal complaint with a professional regulatory body (if the perpetrator is in certain professions), filing a criminal complaint with the police, or adding your voice to organisations that support survivors or advocate changes to the law.
At this stage, you may also start having second thoughts about proceeding. You may discover during the investigation process that you are not emotionally ready, things may change with your family's needs, or you may want to focus on your employment, education, or recovery process. As a firm that practices trauma-informed lawyering, we completely understand that survivors may change their minds. We will always support your decision and encourage you to choose what's right for them. Since there are no statutory limits to sexual assault cases in Canada, depending on how far the case has advanced, you may also be able to pause your participation and return when you feel better equipped to handle what's involved.
If you choose to proceed with the lawsuit, we then move on the court process to seek compensation.
#4 - The Court Process.
The court process required for a lawsuit has many steps. A lawsuit can take anywhere from 18 months to three years to complete from start to finish. The length of the case depends on a number of factors.
First, the lawsuit is started when your lawyer files a document with the court called the Statement of Claim. Once a statement of claim is filed with the court, it is served on the defendant(s). Each Defendant will have an opportunity to respond with a statement of defence. This process can take a few months, especially if the claim is for historical abuse. It may take the Defendants months to locate archived records and files, review them, and carry out their own investigation.
Next, there will then be a period called "Discovery". In this step, the evidence collected by your lawyers is disclosed to the Defendants. The Defendants similarly must disclose all the evidence they have gathered. The parties may also be asked to appear to answer questions about the case - this called an Examination for Discovery. During this process your lawyer will likely have several discussions with the other lawyers about the evidence and their view of the strengths of weaknesses of the evidence in your case.
In most cases, the parties will then attend a mediation before deciding if a trial is necessary. The vast majority of sexual assault cases are settled either at a mediation or before trial. Many of the remaining cases that go to trial settle prior to the court's judgment.
At any point during the court process, the defence may propose a settlement or request your lawyer to engage in informal settlement negotiations.
If the parties cannot settle the case, then your case will proceed to a pre-trial conference, and then a trial. Historical sexual abuse cases rarely require a trial, but sometimes it will be necessary in order to obtain justice.
If you are successful at trial, then you will receive a judgement affirming that you suffered abuse and that you are entitled to compensation, known as "damages", as a result.
Calculating Compensation.
Calculating compensation in cases of sexual abuse is complicated. At a basic level, it is based on two underlying factors - what happened to you specifically, and what a court has awarded in cases similar to yours in the past.
The facts matter because each survivor's case is uniquely personal to them. No two survivors experience abuse or the consequences of abuse in the same way. When establishing a monetary value for a claim, we must take many things into account. Our team knows that the courts will want to clearly understand both what happened to you and how it has specifically affected your life and your heath.
Our team then assesses your unique circumstances and makes reference to past court awards in cases that are similar to yours. Our team uses this to determine a monetary value of your case.
In making this determination, the monetary value is based on the three categories of damages: general damages (also known as pain and suffering), economic losses and special damages (also known as calculable damages).
General damages, or pain and suffering, are amounts awarded as an acknowledgement of a loss that cannot be made right or for damage that cannot be repaired. No amount of damages that will ever be enough to compensate you as a survivor of sexual violence. You have lost something that you can never get back. Our courts award you this kind of compensation simply because this is the only symbol we have to acknowledge what you have lost.
Economic Losses are damages you have suffered to your income earning potential. For example, if your psychiatric injuries caused you to be unable to work or attend school for a period of time, you could make a claim for loss of past and/or future wages.
Special damages refer to the expenses you have incurred to get treatment as a result of the abuse you suffered. This can include medical expenses, therapy costs, medications, and other expenses incurred as a result of the assault or abuse. These losses are calculable, meaning, you can put an exact dollar amount on them.
Your damages are calculated based on your specific circumstances and with a view to how they have affected you. In cases where there are multiple defendants or abusers, the number of defendants and their exposure to liability can also be a factor in compensation.
Our lawyers work tirelessly to get you the best result we can at trial. We hope that a good result can help you not only with improving your life from a financial perspective, but hopefully also give you some measure of vindication and closure.
Special Complexities of Sexual Abuse Cases.
Sexual abuse lawsuits are very complex. There are an array of factors that go into each and every case. Unlike other kinds of personal injury cases, your lawyer must consider your entire life - everything that has happened to you, from every job you've worked, to every partner you've had, from every place you've lived, to every doctor you've seen. Our team recognizes that your whole life has been affected by the sexual abuse you suffered, and the deep and lasting effect it will have on you. We know we must understand your whole life if we want to accurately show how deeply sexual abuse has affected you.
Further, these lawsuits can be technically complex. There is a difference in a lawsuit that names a single person as a defendant, compared to most historical sexual abuse lawsuits, which list multiple perpetrators and sometimes several institutional defendants (for example, schools, religious organizations, sports teams, or other groups). Understanding who to sue and how best to sue them takes time and a precise review of a large number of records. Further, the complex nature of these lawsuits may add time to your case, as multiple parties must be correctly identified, then each of those parties must carry out their own investigations and prepare their own collection of evidence.
These cases take time to do right. Since our lawyers practice exclusively in this area of law, we have the experience and dedication necessary to do the work required to get you the justice and compensation you deserve.
The Conclusion.
There are many steps between making initial contact with a sexual assault lawyer and finding your own personal sense of closure. The path is long but, if done right, it can lead you to a better place. And, you should rest assured that you don't have to walk this path alone. At Jellinek Ellis Gluckstein, we help survivors in any way we can, and we always let them know about other allies who will offer their support along the way.
To learn more about how we can help you or a loved one with a sexual assault case, contact us today.