Analysis: Penn State shouldn't hide behind legal moves - lawyer

NEW YORK Tue Nov 15, 2011 4:48pm EST

An unidentified protestor stands outside Beaver Stadium prior to the NCAA football game between Nebraska and Penn State in State College, Pennsylvania November 12, 2011.  REUTERS/Pat Little

An unidentified protestor stands outside Beaver Stadium prior to the NCAA football game between Nebraska and Penn State in State College, Pennsylvania November 12, 2011.

Credit: Reuters/Pat Little

NEW YORK (Reuters) - The lawyer who took on the Roman Catholic Church in Boston in a sex abuse case has some advice for Penn State University: embrace the victims and tell the whole truth, promptly.

Most legal experts agree that Penn State is likely to face civil lawsuits from alleged victims in the child sex abuse scandal that ousted the university's president and legendary football coach Joe Paterno. The size of Penn State's legal headaches and the damage to its reputation will depend on how the university reacts, according to lawyer Roderick MacLeish.

The university first should disclose any facts relevant to the case, he said.

"It's much better if the facts come from the source," MacLeish said. "They're going to come out. It will give them credibility."

Penn State should also offer unconditional mental health treatment to the alleged victims and set up a private victims' compensation fund, sparing potential plaintiffs the "horrors of litigation," he added.

MacLeish, who has no connection to the Penn State case, was the lead lawyer in a clergy abuse case against the Archdiocese of Boston that settled in 2003. The church's combative legal stance ultimately backfired, MacLeish said.

In spite of overwhelming evidence that the defendants had covered up decades of child sexual abuse, the church fought for two years. The lawsuit ended with the archdiocese agreeing to settle with around 550 abuse victims for $85 million.

In situations where the facts only get worse, it's better to release them openly and promptly, said MacLeish.

MacLeish said he has worked with other schools in the position of Penn State. When those schools have "stepped up" to help victims, they often seen an increase in their donations.

"If Penn State wants to listen to their insurance defense lawyers, this is going to go on for a long time and it's not going to end in a good way," he said.

In an email, Penn State spokeswoman Lisa Powers said she could not speculate on the potential impact of any litigation.

LAWSUITS MAY BE INEVITABLE

No matter how the university reacts, lawsuits may be inevitable.

The most likely claims against the university would be for negligence, said legal experts. In outlining charges against former Penn State defensive coordinator Jerry Sandusky, accused of sexually abusing eight boys, a grand jury found that several university officials had reason to suspect the abuse, but didn't report it to authorities.

Two of them -- Athletic Director Tim Curley and finance official Gary Schultz -- were charged with failing to report a 2002 incident described by a graduate assistant who said he told them he saw Sandusky sexually assaulting a young boy in Penn State's football building. They have denied the charges.

Penn State spokesman Bill Mahon told The Patriot-News the school's insurance is paying the legal fees of Curley and Schultz because the charges relate to their jobs at the school. Such an arrangement is typical and likely won't affect the university's liability, legal experts say.

The case against the school could turn on the inaction by individuals, say some lawyers who have handled similar cases.

"By not reporting it, you could argue they enabled a predator to continue to abuse kids," said Jeff Herman, a Miami attorney who said he has received inquiries from Sandusky's alleged victims about potential lawsuits.

Herman last week won a $100 million verdict in Florida state court for a client who accused a retired Roman Catholic priest of sexually abusing boys over decades.

In addition to the university, Herman said he is also weighing lawsuits against some of the individuals who may have known about Sandusky but didn't report it to authorities, including Curley, Schultz, and Paterno.

MacLeish said the university and the individual defendants could raise technical defenses to those claims, arguing perhaps that they didn't have any duty to the children.

"That may be a winning legal argument but they shouldn't do it," he said.

Penn State could also seek refuge in a Pennsylvania state law that shields universities that receive state funding from certain kinds of litigation.

That defense would be "legally weak and politically dangerous," said Max Kennerly, a Philadelphia trial lawyer who has written about the case on his blog, Litigation & Trial.

If claims by the victims survive scrutiny by courts, there would be enormous pressure on Penn State to settle, said Victor Vieth, director of the National Child Protection Training Center. Most defendants don't want to risk going to trial where the ugly accusations will be aired.

"Jurors are your average person," said Vieth. "They tend to react with emotion and put themselves in the position of the plaintiffs in the lawsuit."

(Editing by Eileen Daspin and Doina Chiacu)

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