Stamford Marriott Hotel and Spa has allowed its attorneys to aggressively pursue a mother of two children who was pulled into her van and raped in front of her children in a Marriott hotel. Marriott now asserts that the 40-year-old mother was responsible in the attack, failed to “mitigate their damages,” and has sought discovery from friends and neighbors. The move led to a predictable backlash among the public.
The counterclaim and discovery is standard in a torts action, though lawyers and clients often fail to see the objections to pursuing a sympathetic victim.
On Oct. 10, 2006, Danbury native Gary Fricker, 56, forced this mother to take off her clothes and then raped her under threat that, if she didn’t comply, he would rape her children. He received a 20-year deal — which I view as a bit light when you consider his act in kidnapping the family, threatening a 3 and 5 year old with rape, and the use of a gun. The prosecutors may have felt compelled to accept a deal to spare the women and her children from a traumatizing trial. However, she now suggests that Marriott has more than made up for the experience.
The mother has also asserted the right to anonymity, but her lawyers insist that the hotel has identified her to her pilates instructor, friends and tennis partners, a house cleaner, and a baby sitter through its private investigation.
The question is whether the lawyers have gone too far or are simply doing their due diligence as advocates. After all, it is a bit unfair to bar discovery to a defendant to protect anonymity in a civil — as opposed to a criminal — case. The victim elected to file the action and Marriott has a right to defend itself.
However, this still does not entirely justify an aggressive litigation approach or a decision not to settle the action. Justice may be blind but lawyers are expected to see the implications of their strategic decisions. As we have seen in other cases, companies often allow lawyers to adopt aggressive approaches toward sympathetic parties only to drop the claims after public ridicule. Lawyers are trained to win cases or lower damages. Yet, good lawyers will raise the public relations implications (and indecent aspects) of a litigation strategy with their client. As in these earlier cases, Marriott has now dropped the claim of contributory negligence — after infuriating the public and tarnishing its corporate name further. Marriott attorney Donald Derrico, however, insists that they never revealed the name of the victim and would conduct any discovery with care. The legal strategy, however, succeeded in bringing national attention to the alleged dangers of Marriott properties and the view of Marriott as a heartless and careless corporation. It not only tarnished the corporate image but likely convinced many to avoid the chain entirely. A considerable cost before the parties even enter court — and long before any jury verdict.
In one of the most disturbing claims, Marriott alleged that the victim “failed to exercise due care for her own safety and the safety of her children and proper use of her senses and facilities.” It is a pretty outrageous argument when one considered that she allowed herself to be rape to keep her children from being raped.
Here the mother is claiming that Marriott knew that the man was acting strangely on the property for days before the attack. She also claims that he was known to be acting strangely that afternoon but security did not act to apprehend him or call police.
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