Why litigate? Aren’t there better ways to resolve a dispute? How did it come this far?

 

Litigation - day in court 3

They say Hell hath no fury like a woman scorned.

Well, even that sense of outrage is dwarfed by the instinct of parents to protect their children – especially from those who deliberately cause them harm. The vigor and passion of behind Josephson vs. Archer comes from that powerful instinct.

The Josephsons believe that any parent willing to take the time to look at the underlying facts articulated in the Complaint (see tab under Pleadings) will find it impossible not to experience second-hand outrage at conduct by Archer’s Head of School, Elizabeth English and the seeming callous indifference of members of the Board who repeatedly ratified, rather than repudiated those actions.

Still, filing a lawsuit against an elite institution with a wealthy and powerful board and whose financial risk is cushioned by insurance, is an act that should not, and was not taken lightly.

In addition to the emotional stress and very substantial financial costs (unlike the defendants, plaintiffs don’t have an insurance company to foot the bill of legal representation) inherent in modern litigation, the Josephsons realize that the defendants will escalate  their campaign to alienate them from close friends in the Archer community and discredit their claims by attacking their motives and character.

Litigation - tell your storyLitigation - if you claim it, prove itLitigation - oath to tell the truth

The Complaint outlines a pattern of conduct  whereby Ms. English continually sought to intimidate plaintiffs with threats and coerce them with extreme and injurious actions leveled against the Josephson children.

Whether her actions were driven by personal malice and animosity against Mr. Josephson as the evidence suggests, or simply an autocratic leadership style that is completely intolerant of disagreement or any form of opposition, the facts set forth in the Complaint compel the conclusion that Ms. English, with the participation and endorsement of the Board, has been willing to use every technique and trick at her disposal to force plaintiffs to surrender their right to dissent and she has used those power to vilify and punish the plaintiffs in retaliation for legal and respectful efforts to protect their children. 

Consistent with efforts to damage Mr. Josephson’s reputation that form the base of plaintiff’s defamation claims, Archer and Ms. English expanded Though the Josephsons elected not to publicize the lawsuit beyond those directly involved and made no formal announcement to anyone when the suit was filed, Archer and Ms. English immediately launched a broad-gauged public attack on the Josephsons including a letter informing all faculty and staff (and possibly others) of the lawsuit. The letter made it quite clear that anyone affiliated with the school was to have no contact whatever with Anne of Michael Josephson or their children. And to those who know Ms. English’s leadership style, the implication that their job was on the line was clear.

If there was a shred of doubt about Ms. English’s vindictiveness and callous willingness to harass and humiliate innocent children (and the Board’s continual ratification of this conduct), the plaintiffs believe that shred was dissolved by a final blow administered on May 27, 2014 in the form of a letter which demanded that Michael and Anne Josephson inform C1 and C2 (who had been invited to attend the graduation ceremonies of their respective best friends on May 29) that if they attempted to go on campus they would be stopped by security or law enforcement. This act (ratified by the board through inaction as they were notified in time and requested to repudiate the action) quite predictably caused another emotional crisis with each of the girls who were ostracized.

Ms. English also instructed the Josephsons to inform their other two daughters who had graduated from Archer and were in college in New York, that they too were permanently banned from appearing on campus for any reason.

This is precisely the sort of situation where the right to legal redress, the right to one’s day in court, one of the most fundamental and important rights (for both plaintiffs and defendants) to tell your story to a neutral judge or jury with the power to determine who is and who is not telling the truth and hold parties accountable for their actions.

Plaintiffs believe that the Board refused to take their claims seriously and give them the consideration they deserve and when their offer was spurned they did what they promised to do — seek redress for their grievances in court.

Attempts to Avoid Litigation

The decision to go to court was made only after Archer’s Board rejected plaintiffs’ offer to settle under very moderate terms. This offer was tendered to all Board members on April 29, 2014 with the condition that it would expire on May 15, 2014 (a decision any later would prevent C1 from benefitting from a decision to let her participate in senior activities).

Instead of negotiating in good faith and making any good will effort to at least mitigate ongoing and escalating injuries to the Josephson children, Archer’s legal representative mocked the claims as frivolous, raised procedural issues and never addressed the request that the Board conduct its own investigation.

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.

The Mediation Ploy

Just as the offer was about to expire, Archer’s counsel suggested the Board would be willing to enter into a mediation (which for many legal and practical reasons he knew or should have known would make no sense to plaintiffs.

Though an offer to mediate may seem like a reasonable effort to deal with plaintiff’s’ claims and injuries to a lay person, it was obvious to anyone who really understands how mediation works that this was an empty offer at this stage of the dispute designed as a ploy. For one thing, the plaintiffs were working under a very tight timeline as a crucial aspect of their offer was the mitigation of the continuing emotional harm to Child 1 and Child 2 resulting from Ms. English’s actions – this was an action they should have taken irrespective of the offer to settle. (Plaintiffs urged the Board to re-instate C1 for the last few weeks of the semester to mitigate the damages and do the right and humane thing even if they did not want to agree to any of the other terms of the offer).

Defendants knew (or should have known that mediation of this sort of dispute would itself have been very costly in time and money (selection of a mediator both sides could trust would, itself be a major undertaking and attorney fees would be substantial> Much more important, agreeing to a mediation would require plaintiffs to suspend all pursuit of legal redress and start a voluntary process which, with absolute certainty would not provide timely remedies for C1 and C2. And, as the defendants knew it would deprive plaintiffs of the right of discovery and the obligation of the defendants to respond to their allegations under oath — two factors plaintiffs believe were essential to permit a neutral fact finder to make a thoughtful and responsible determination of the facts.

Plaintiff’s attorney promptly informed the Board that the mediation option was not responsive to the offer to settle and was not acceptable with ample time for the board to make a substantive response to the offer. Instead, their deliberate decision to let the offer expire was the clear equivalent of “You’ll have to sue us.”

Plaintiff’s don’t know why the Board chose the one option certain to subject Archer, Ms. English and themselves to the stress, costs and other consequences 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, and it was.

In this case, it was the only means available to plaintiffs who, after months of seeing their children bullied and tormented were committed to holding accountable all those who inflicted these harms. 

Litigation - to kill a mockingbird

Comments 1

  1. I am saddened to learn that a refined, private institution, such as the Archer School, is led by such prideful & unbridled leadership.

    It is horrific to consider that the well being of our children might be entrusted to those so flawed in their thinking that they would allow the school to become so vulnerable to attack; and to deem it proper to meet a child’s mere impertinence with such Draconian measures.

    It is in no way proper for an Administration to address a child’s short-lived and trivial act of rudeness, with a process & punishment aimed to permanently scar a student’s recollection & record.

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