Lawsuit Against BSA
Michael F. Bowman (mfbowman@CAPACCESS.ORG)
Fri, 17 Jan 1997 08:54:17 -0500
On Wednesday we learned from a series of postings that the Boy Scouts
of America is being sued for $42 million as a result of allegations of
sexual abuse at a New York Camp. The primary information came from
the news media's web pages with a bit of commentary from Brian, who
apparently worked at the camp where the lawsuit originated. This in
turn generated a number of comments expressing feelings and opinions
about this matter, which understandable given what we heard. However,
the expression of feelings and opinion on the net regarding this
matter is potentially dangerous.
Let me speak to you for a few moments, not so much as a Scouter, but
as an experiencced defense trial attorney.
In recent years with the growth of the Internet, trial attorneys have
been fairly quick to see discussion and usenet groups as potentially
rich and fertile areas for discovering information that can be used
to help win cases against a defendant. Typically, a trial attorney
will try to find out what areas of the net have discussions about the
subject of a lawsuit and then will subpoena the listowner or the
discussion moderator(s) to produce all of the logs and records of
those discussions for examination.
The trial attorney will then look for:
* Opinions as to what the standard of care should have been.
* Clues as to what rules existed in an organization.
* Information about who might have been involved or who might be a
good witness in the case.
* Sources of other written information about the case.
* The degree of outrage an act provoked as a way of reinforcing
the attorney's conception of what standard of care should have
existed (but which did not exist until the attorney made it up).
Once satisfied that this resource has been adequately farmed, the trial
attorney will often subpoena some of the posters to get them to testify
at length about their feelings and opinions. Sure the defending lawyer
will object and the disputed matters will be heard by a judge, who
being a human probably will be affected by what he/she hears. And of
course most juries are pretty good at sensing how a judge feels about a
case. So it is really a no-win situation at that point.
Last year a trial attorney tried to do just this in a lawsuit against
the BSA. Fortunately the trial court was not too impressed and the
lawyer had not scooped up all the available information from discussion
groups - he missed Scouts-L.
The next time or this time the lawyers may be smarter and may take a
look at Scouts-L. Anyone who has posted a message on the issue is
then is regarded as a potential witness and could end up with a
subpoena to testify at a deposition, where the rules are pretty lax
about what can and cannot be discussed. The attorney will try to
get the witness to give opinion and express feelings and to learn
any useful information that may be there.
For example the deposing attorney will try to establish what standard
of care was owed by the camp and the leaders towards the Scout. You've
all been camping with Scouts and know that it is a tough job and that
you can't be everywhere at once watching each Scout every minute. This
won't matter, the attorney will try to get folks to say stuff that will
give the impression that there is an absolute standard requiring
perfection far beyond what we would think of as a reasonable, a standard
which if real would mean that none of us could ever sleep, that every
Scout would have to be watched every minute and that every danger or
bad thing would have to be anticipated in advance - a standard that if
applied to you would be impossible to fulfill and would make each of us
more and more vulnerable to more of these lawsuits.
Of course the next step for the attorney will be to try to use the
opinion and information to make his/her case. If it works and BSA loses
and is ordered to pay damages - about 40% of which end up in the lawyer's
pocket (these cases are usually handled with a contingency arrangement
and not an hourly fee), the lawyer wins and Scouts in the movement end
up being the real losers. In this case the lawyer would end up being a
millionaire 16 times over. BSA could be forced to cover the cost and
Scouts would pay by losing programs that couldn't be funded.
Not very pretty. But this is the reality of litigation. As a result,
I would ask that each of you as responsible Scouters refrain from
engaging in further discussion of the lawsuit. Discussion here will not
change whatever happened, won't necessarily cause any positive changes,
and certainly sets up some risks for the organization we are a part of.
We do not have first hand knowledge of the facts in the case. We have no
way of knowing all the details of what happened, which are probably hotly
disputed. And we may also want to put ourselves in the shoes of the
leaders who were asleep on that night. Its kind of hard to do because we
don't know what their circumstances where or what had happened up to that
point, nor do we know the circumstances that allowed the composition of
the group. All we can do is speculate or form opinions and ones that
could potentially have adverse effects on the resolution of this case.
Please, act let's act responsibly under these circumstances and refrain
from further discussion allowing this thread to die a quick death. After
all who wants to enrich the lawyers with such a windfall in the case.
The only winners in a case like this are the lawyers, who get enriched
at everyone else's expense.
Speaking only for myself in the Scouting Spirit, Michael F. Bowman
Dep.Dist.Commissioner-Training, G.W.Dist., NCAC, BSA (Virginia)
U. S. Scouting Service Project FTP Site Administrator (PC Area)
ftp1 or ftp2.scouter.com/usscouts E-mail: mfbowman@capaccess.org
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