The facts of the case are these, and they are undisputed:
She was a ward of the State in Mississippi as a preteen, along with her sister
The facility she was placed in was mandated by the County
3 The facility is owned and run by a company with many assets and political clout
She, and many others in the facility were molested by a scumbag pedophile in charge of the wing of the facility
Said scumbag was arrested and convicted of the many molestations. He is currently serving 20 years. The acquaintance and sister both testified at the trial.
Now, acquaintance and sister are suing the facility, naturally.
The acquaintance has told me that her lawyer in Mississippi has advised to settle for a certain amount because , and I quote, “that is the limit of the Facility’s insurance”.
My first impression was for her to get a real lawyer. This guy sounds like a lazy hack. This is what I would expect THEIR lawyer to say.
Who cares what their insurance limit is? They are a large company with money and property
The abuse does not have to be proven. It was already proven in criminal court. It is fact.
The lawyer represents several victims. all of whome testified at the criminal trial.
So, non-lawyers. Would you question this particular lawyer’s skill, balls or allegiance? Or do you think he has a point?
I would think a lawyer would be chomping at the bit to get this case.
If I have placed this in the wrong forum, please feel free to move it.
He might be advising that if she settles for that amount, she’ll just get it, but if she asks for more, it will go to trial and that may be painful to her.
But does insurance have a per-person cap or a total cap. If the latter, it could well depend on how many victims there are.
So the insurance would have a cap on what they insurance would pay. If they go to trial and get a big judgement, the facility would have to pay the rest. Am I wrong?
I mean if I get auto insurance and the cap is 16K, and I cause an accident with 100K damage and am sued, I will be on the hook for everything AFTER the 16K
Does the facility have the available funds to pay a bigger judgement? If they get swamped with claims, and the claimants all go for maximalist claims, does the facility have the available funds to pay off all of the maximalist claims? Or do they just declare bankruptcy? The laws on that are going to vary state to state, but best case, if a bankruptcy court privileges the claimants in the abuse suits over other creditors, there may simply not be enough assets to cover all the claims.
The practical choice might be an effectively automatic, relatively fast and painless payout of a settlement covered by insurance, or a protected legal dispute, which doesn’t wind up with much more actual money being paid out, especially after the plaintiff’s lawyers are paid, and which might actually be less.
I Am Not A Lawyer, so that could all be way off, but as a total layman, I don’t think it’s inherently ridiculous for a lawyer to advise their client to take a guaranteed payout now rather than going for a much less certain payout at some unspecified future date.
Of course, that’s all assuming the net dollar amount received is what your friend is mostly concerned about. If the settlement comes with stipulations that they find unacceptable, like an NDA or a lack of admission of fault, that’s another matter entirely.
Again, I Am Not A Lawyer, but even if the judgements are enforced without regards to bankruptcy protections, and judgements are paid out in full before any other creditor gets a penny, does the facility actually have the physical assets to cover all current and future claims, even assuming they liquidate everything? I Am Also Not A Forensic Accountant, but, again, it doesn’t seem inherently ridiculous for a lawyer to advise their client to take the bird in hand.
But that is not the case here. The amount of damage would be very much in the eye of the jury not on an invoice from the mechanic.
Let’s make a couple of assumptions for the sake of the argument.
The facility is owned by Megacorp which has bazillions in assets.
The branch of Megacorp or it’s subsidiary has an insurance cap of $100,000 for judgements. Anything above it has to come out of pocket.
The victim is verifiably damaged in the amount of $1,000,000 and asking for another mill in punitive damages.
We know from the criminal case that John Doe was extremely guilty. John Doe has $1.85 in the bank.
The lawyer knows Megacorp will offer up to $100,000. Anything over they will fight tooth and nail. They have the lawyers and money to drag it out for many years.
If the case was against John Doe it’s a slam dunk. That gets you $1.85.
In court John Doe’s guilt is secondary. You are trying to prove that Megacorp was negligent or in some other way culpable which may not be nearly as easy.
Way fewer lawyers are willing to work on contingency than movies would lead you to believe. Is the lawyer willing to work for free for several years?
It’s probably worth it to consult another lawyer. It may very well be worth it to take the 100k now rather than possible millions 4 years from now.
To answer the original question, I would certainly pursue it, with this attorney first, asking them why they are giving this advice, and telling them that I (the claimant) have no problem whatever going to court for as long as it takes, since the facts are already proven. And then see what they say.
If I am not satisfied, and if I am not broke, I would risk the funds to consult another attorney about the first attorney’s opinion, making it clear that there is no way that the 2nd attorney would ever handle the actual case for me (this is to help ensure objectivity). This would cost something, but would generally be worth it for peace of mind if nothing else.
I am not a lawyer, but she might also sue the state or county government, since they presumably vetted this agency and placed minor children with them.
Thirded. Even if it’s a slam dunk against the actual abuser, the case against the employer may be another matter.
Other than the lawyer advising the OP’s friend in a way that seems overly restrained (just settle for the insurance payout and hope they don’t fight to hard over that) doesn’t mean he or she is not a “real” lawyer.
Addressing the OP directly, I only hope that, in addition to or in lieu of seeking to offer your friend unsolicited legal advice derived from non-attorneys, you are offering other (moral/emotional) support in this difficult time.
As a lawyer, there are just too many pieces of information missing. Among them:
How is the facility owned? Even among huge corporations, many pieces are incorporated separately to avoid liabilty in situations like this. So company XYZ, Inc. seems like one big company, but it’s actually held as multiple small units. It’s not hard to imagine a parent company having this facility being a stand alone corporation with few assets. If that is the case, I would want to know if there are ways to get liabilty from the other pieces.
How did the facility fail? Were there steps they should have been taken to protect the clients that they didnt take? If not, what ways do we get to liabilty for the company.
Are there any witness/victim realibilty problems? Will they be around in 3 years when the case finally goes to trial?
Are there going to be expenses for the case that the plaintiffs can’t pay? I.e. expert witnesses, forensics, etc.
I could go on and on. That being said, there is nothing wrong with your friend consulting with another attorney. If they cant find someone that is jumping at the bit to take it to the next level, that’s a good sign the first lawyer is giving good advice.
Would depend on the structure of ownership. It is entirely possible parent company is totally immune from liability beyond their equity should the child company go under.
You are making common layperson mistakes. What mjmartin said.
People see big name companies or institutions and assume that they (a) have substantial net equity and (b) are actually one legal entity. Both of these propositions are highly questionable. Many large institutions are leveraged to and beyond the hilt. Many big names are not one thing, except in branding. The classic illustration of this is the Catholic Church. Many people see it as a gigantic extremely wealthy entity but if a pedophile victim sues the local parish, they will likely find it is a standalone entity that may have no more assets than some pews, the church itself, and the ground it stands on.
You are confusing the perpetrator and the institution. Although the institution may well be liable for the proven conduct of the perpetrator, this may well not be automatic. As a broad general rule, an employer is not by any means automatically liable for criminal acts committed by its employees.
Finally, as a lawyer I have heard many queries or complaints similar to the OP. Can I gently suggest that there are generally two possibilities - The first is that the lawyers are incompetent. The second is that you don’t understand the situation or don’t have the full facts or don’t understand the law. In my experience, the latter situation is not merely more common but close to always the case. There are certainly lawyers who are totally incompetent but they are as rare as hen’s teeth compared to the latter.
Typo_Negative doesn’t say that the acquaintance is unhappy with the advice they are getting. It may well be that the acquaintance has had the situation fully explained to them by their lawyer and understands why the lawyer has said that accepting a settlement at the limit of insurance is a good idea.
Or alternatively another likely possibility is that the acquaintance has had the situation fully explained to them by their lawyer but doesn’t understand. The better course in that situation might be for the acquaintance to bring a trusted and smarter person along to an appointment or have them read the lawyer’s advice if it is in writing (and it should be) and see if it makes sense to them. I would try these steps well before I would go spending money on another lawyer.
A common experience for most lawyers is that they provide an advice which is necessarily somewhat complex but which has a simple conclusion which the client doesn’t like. The client then rejects the advice in a way that shows they can’t, or won’t, or haven’t, understood the facts and reasoning set out to explain the conclusion. This is again a more likely possibility than the lawyers have got it wrong.
Once again, it is possible lawyers have it wrong. But that is a conclusion one reaches well down the line after other more likely possibilities
I wholeheartedly agree with this. I tell my clients all the time to feel free to get a 2nd opinion. I just ask for the courtesy of a chance to hear what the new lawyer has to say. If I’ve been working on your case for 2 years, its not only possible, but highly likely that the client had relayed information incorrectly or at least insufficiently to the attorney they are consulting with. If the new lawyer has all the information and has a better strategy or more confidence or whatever, I wish my client well.
Related to the OP though, the thing I would be worried about is not incompetence, but a shrewd cost benefit analysis the lawyer has made. Very likely the lawyer has a contingent fee agreement. If they settle for $100k, the lawyer gets $33k for doing X hours of work. If they take it to the next level and the lawyer has to do 5X hours of work to get the settlement to $200k, the lawyer does 5 times the work for only 2 times the fee. That is not supposed to be how we look at it, of course, but it’s frankly quite common. Most personal injury firms you see advertised on tv have their business model set up around doing business this way.