The Truth Still Matters

One year after #MeToo, great wrongs have been uncovered. The movement’s momentum, and the rush to judgment, also puts justice at risk.

By Sylvia Luppert

Reaugh Oettinger & Luppert, P.S.
Oct. 15, 2018

The #MeToo movement sheds a long overdue spotlight on the prevalence of sexual harassment and the damage it causes to its victims and our workplaces. Plaintiffs’ employment lawyers, like myself, particularly welcome the movement. We must, however, be aware that it’s a double-edged sword, posing real dangers of misuse and threats to our system of justice. My own awareness of the downside came with a recent newspaper story in the #MeToo theme which falsely accused a friend. The news story brought to my mind my previous experience with other false accusations stemming from another kind of movement – the redress of child sexual abuse based upon the now debunked Recovered Memory Syndrome.

For the past 20 years, I have represented plaintiffs in employment discrimination cases, including workplace sexual harassment. When I first began practicing law in 1985, however, I represented defendants in various kinds of cases. One of my first cases involved defending a man whose adult daughter claimed to have recently remembered that her father sexually abused her when she was a child. I was dubious then about the daughter’s claim, based on my interviews with relatives. The reactions of my fellow lawyers, however, demonstrated that the daughter was very likely to be believed by a jury. Other lawyers, including defense lawyers, uniformly asked who would make up such a terrible story if it were not true. I realized that successfully defending against the claim on the merits was close to impossible. In the end, I defended on the basis of the statute of limitations, arguing that the discovery rule, which tolls the running of limitations statutes, should not apply in cases where there is no tangible, corroborating proof of injury. The Washington Supreme Court agreed in Tyson v. Tyson, 107 Wn.2d 72 (1986). 

Over the next few years, I represented other defendants facing similar accusations based upon the recovered memory syndrome. The same kinds of accusations were emerging all over the country. News media picked up the banner for the victims and seldom questioned that memories which had not existed for years might be false. Plaintiffs lawyers suspended their critical thinking to advance what had become a cause. Adult claimants were portrayed as child victims, the accused as monsters, and anyone defending against these claims as pariahs of justice and opponents of women’s rights. Naturally, those accused of sexually violating children were permanently tarnished. 

My own concerns about false accusations of sexual abuse subsided until a March Seattle Times series arising from the #MeToo movement, with women telling of their harassment in the workplace and the lasting consequences. The Times identified some of the women’s employers, but named only one of the accused. That person, Sherry Harris, made national news when she was elected to the Seattle City Council in 1992. She was the first black, openly lesbian elected official in the country, served one term and has not been in the public eye since 1995.

I know Harris, and am as certain as I can be that the accusation is false and would not have been made but for the fervor of the Times to jump onto the #MeToo movement bandwagon. I would ordinarily applaud such a story, as I had done for other #MeToo revelations. Instead, I began to think about how the #MeToo movement affects the practice of employment law for both plaintiffs and defendants. I worried about the possible parallels between #MeToo and the Recovered Memory Syndrome heyday. I asked whether it is time to take a deep breath and review how we balance the movement’s zeal to expose wrongdoing against the right to fair treatment in the courts. And, in particular, how should lawyers navigate this nexus of #MeToo, the rush to judgment, and justice?

Workplace sexual harassment is probably as old as civilization, yet its development as a legal cause of action is relatively new. The Washington Supreme Court was one of the first state supreme courts to recognize a legal cause of action in Glasgow v. Georgia-Pacific, 103 Wn.2d 401 (1985). Although lower federal courts in the 1970s began recognizing a cause of action arising from Title VII of the Civil Rights Act of 1964, the U.S. Supreme Court settled the issue in Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986).

The MeToo movement is newer. In 2006, civil rights advocate Tarana Burke founded an organization called “Me Too” to empower women, especially young, minority women, to speak out against sexual abuse and harassment. Last October, after many revelations of abuse by movie mogul Harvey Weinstein, actress Alyssa Milano encouraged using the phrase as a hashtag to help expose the extent of problem.

Plaintiffs’ employment lawyers hail the #MeToo movement for bringing credibility to their clients’ claims of sexual harassment. The #MeToo movement should raise issues about how we first approach, investigate, and present our clients’ positions to juries.

Lawyers must accord potential clients the presumption of truth when they first contact us. We must also heed civil rule 11 which establishes our most basic duty: that to the best of our knowledge, information, and belief, formed after a reasonable inquiry under the circumstances, everything we file in court is well grounded in fact. Simultaneously presuming our clients’ truthfulness while critically investigating that our clients’ stories are well grounded in fact might well be best expressed in the phrase, “trust but verify.”

The #MeToo movement does not make the presumption of truth irrebuttable nor does it abrogate our duty to make reasonable inquiries and bring only claims well-grounded in fact. The #MeToo movement does, however, make our work complicated. History provides some helpful examples of both women telling the truth and not being believed, and of women lying but being believed.

Many lawyers, including me, believed Anita Hill when she testified at the confirmation hearings for Clarence Thomas in 1991. She is attractive, well-spoken, and a successful professional. The presumption of truth, considering her appearance and her demeanor, seemed well justified. The #MeToo movement has undoubtedly strengthened that presumption by reversing the historical trend of not believing women’s allegations of harassment.

The judiciary committee, however, believed Thomas’s denials, but not Hill. The committee disregarded witnesses who corroborated Hill and did not allow them to testify. They accepted, without question, the defenses of Thomas’s supporters that because Hill told her story calmly, without visible distress, she must have invented her story. The committee was unable to fathom that the indignity of having to listen to crude sexual comments from a man who holds power over his employee could cause her serious emotional damage even though psychologists understood the harm. Thankfully, #MeToo suggests the outcome should be different today than in 1991. (1)

In sharp contrast to Anita Hill, is a woman who figured in civil rights history by claiming that a teenage African American boy named Emmett Till made sexual advances on her. Her husband and brother-in-law tortured and murdered Till, and a jury acquitted them based on this woman’s testimony. Many years later, she admitted her accusation was false. This should always be a reminder to lawyers of the consequences of not bringing claims well-grounded in fact based on a reasonable investigation. Although the consequences for a falsely-accused defendant in a civil suit are not deadly, they still may destroy a life.

In the Salem Witch Trials defendants were guilty because they were accused. We may not be as far removed from this primitive, ugly jurisprudence as we would like to believe. Author Margaret Atwood points out that mob justice “tends to kick in during the ‘Terror and Virtue’ phase of revolutions – something has gone wrong, and there must be a purge.” (4) Atwood sees parallels between Salem and the #MeToo movement and worries that the #MeToo may have set off a new phase of “Terror and Virtue.” #MeToo, fired by social media, may be stoking a new phase of “Terror and Virtue,” just as occurred with recovered memories. When they smell blood in the water, lawyers enthralled by movements become part of the problem.

One aspect of the #MeToo movement is the Believe Women movement. Historically, women’s accusations of sexual harassment and assault have not been believed, though statistically only a small portion of these accusations are false. The Believe Women movement advocates that women alleging sexual misconduct must be believed. New York Times opinion writer Bari Weiss urges us not to equate Believe Women with Believe All Women. (2) Weiss acknowledges the historical tendency of disbelieving women’s accusations justifies moving the pendulum in the direction of belief. On the other hand, Weiss worries that the damage done by false accusations should caution us not to unquestioningly believe all women, but instead to “trust but verify.” Lawyers have always had a professional duty to trust but verify.

There is a developing school of thought that a white woman’s accusations against a black man should never be entitled to a presumption of truth. Throughout the country’s history, there has been as much of an historical pattern of giving special credibility to white women’s accusations against black men as there has been a pattern of giving little credibility to women’s accusations of assault and harassment. The presumption of truth should not change with either fact pattern and neither should our duty to trust but verify.

We lawyers must also be aware of and guard against our own unconscious bias, including the ways in which the #MeToo movement may have swept us up. Fortunately, both federal and state courts are attempting to educate jurors to beware of unconscious bias. (3) Lawyers may be less susceptible to unconscious bias than many potential jurors, but we can also learn from the courts’ efforts at educating jurors. Again, trust but verify is the sensible approach to overcoming any of our unconscious bias.

The need to trust but verify is vital. This was strongly brought home upon learning that the Times ignored its own reports when it made the false accusation against Harris. The newspaper’s archives include a Feb. 17, 1995 story providing key background, including the accuser’s history of making false claims against her previous employer — a Seattle Municipal Court judge. The Times also ignored its Feb. 23, 1995 story, headlined “Harris cleared in accusation of sex harassment.” All of Seattle’s other major media covered the story 23 years ago; it wasn’t something that had been swept under the carpet. A minimally responsible investigation would have informed the Times that the accuser was rehashing old accusations, determined in 1995 to be false by two independent public agencies. 

There’s a lesson here. I believe in and am glad for the benefits of the #MeToo movement, but I do not want to be so far caught up in its momentum that I fail, as the Times did, in the responsibly of verifying that claims are well grounded in fact. The truth still matters.

Lawyers have special obligations that news outlets and social movements do not. The Preamble to the Rules of Professional Conduct begins, “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the court and a public citizen having special responsibility for the quality of justice.” From time to time these duties may conflict with each other. Advocates must weigh our client’s interests ahead of all other interests, but we may not relinquish our separate obligations to our system of justice, the courts, and the public. The quality of justice depends upon our insuring through a reasonable investigation that our cases are well grounded in fact. #MeToo complicates our obligations, but still does not eliminate the most basic obligation to serve justice.

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Sylvia Luppert began her career as a law clerk at the Washington Supreme Court. In 1985, she began practice as an associate for a defense firm, and a few years later for a plaintiffs’ firm. Her current practice divides into business and employment law representing employees. Her current practice arouses her concern and empathy for employees who have been sexually harassed in their employment, but not believed. She tries her best, however, to ask herself the questions she poses in this article.

Her firm is Reaugh Oettinger & Luppert, P.S., in Seattle. She may be reached via SLL(at)reaugh.com.

Citations:

1. Despite the outcome, the hearings may have been a forerunner of #MeToo in sparking awareness and activism about sexual harassment. Sen. Patty Murray (D-Wash.) credits her reaction to those hearings as the basis for her entering politics.

2. “The Limits of ‘Believe All Women,” New York Times, Nov. 28, 2017.

3. The new WPI 101 Advance Oral Instruction now addresses unconscious bias. The US district court’s video is viewable at www.wawd.uscourts.gov/jury/unconscious-bias

4. Margaret Atwood, The Globe and Mail, Jan. 13, 2018.