Why go to court? Aren’t there better ways?

Anyone experienced with litigation knows its hazards and costs well enough to consider it a last resort. That’s what the Josephson’s say happened here. The documents posted on this site show an extraordinarily extensive effort to avoid filing the lawsuit but none succeeded.

Compare the terms of the offer to settle (set forth in detail at the end of this post and under the tab “Settlement Efforts”) seeking only:1)  partial reinstatement of the Josephson children, 2) an investigation of plaintiffs allegation conducted by the Board, 3) development of guidelines for the exercise of discretion, and 4) the return of tuitions paid for students who weren’t allowed to complete there semester at Archer (there was no request for compensatory damages, punitive damages or attorneys fees) with the Complaint seeking millions of dollars in compensatory and punitive damages based on six very solid and well-documented causes of action.

Plaintiff’s don’t know why the Board turned this down and instead decided to subject Archer, Ms. English and themselves  to the stress and costs associated with all-out litigation. If they were standing on some principle they never told plaintiffs what it was.

Litigation should be a last resort, but sometimes it’s necessary. It may be the only means of getting justice and holding people who injure you accountable.

Although Ms. English launched a barrage of threats and imposed extreme sanctions on the Josephsons and their children for even suggesting the possibility of seeking judicial review of injurious conduct they believed was wrong, we must not forget that one of the most fundamental and important rights (for both plaintiffs and defendants) is the right to have your day in court where you can tell your story to a neutral judge or jury with knowing that, in the end, the the trial will resolve the dispute and that, where warranted the judge will hold parties publicly accountable for their actions.

What’s more, when parties to a controversy are exchanging accusations the processes available in the judicial process require all sides not merely to state their case, but to prove it. Courts are not tolerant of casual or careless disregard for truth.

The Josephson’s contend that the record is clear that it was the plaintiffs who forced the issue to go to trial. In rejecting the Josephson offer to settle all issues before trial simply by: 1) reversing Elizabeth English’s decision (alleged to be malicious, unnecessary and unprofessional) to prevent “Child 1” from participating in graduation ceremonies and other senior activities with her lifelong classmates and by repudiating her decision to banish Child 2 from Archer in retaliation for Mr. Josephson’s efforts to protect Child 2; 2) agreeing to conduct an objective independent investigation of all plaintiffs documented allegations; 3) develop guidelines and internal controls to prevent future abuses of power; and 4) reimburse the Josephsons for tuition paid since Archer did not allow either Child 1 or Child 2 to benefit from the education they paid for.

The Josephson’s were explicit that this was their last and lowest offer and that suit would be filed if the Board rejected it. Thus, it seems that it really was the defendants who preferred litigation though it is certain that, regardless of the outcome, all involved will expend great sums, and in Archer’s case, suffer the reputational implications of a public trial.

Litigation - day in court 3

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