Behind the diocese deal

By Ann Pepper
Orange County Register
January 4, 2005

http://www.msnbc.msn.com/id/6785248/

The fate of the $100 million settlement between the Catholic Diocese of Orange and alleged sexual-abuse victims balanced, in the end, atop a stack of personnel documents that plaintiffs demanded be made public.

Plaintiffs say the records show how they were victimized as children, when the diocese knew about it and how local church leaders responded.

For many, money meant little compared with securing the release of the documents and an apology from the church.

The deal-breaker issue pushed negotiations into the late hours of Dec. 2 - that last of four days in which everything from tough judges to an inhospitable courthouse played roles.

Other hurdles had been cleared earlier in the year.

First, cases had to be consolidated. Neither the diocese's eight insurance carriers nor the diocese were willing to pursue separate settlements.

"We wanted to try to settle all these cases at the same time if we could rather than individually," said Peter Callahan, lead counsel for the diocese. "Sure, we could win some and lose some and some could drag on for decades."

Callahan put together a team of advisers that included celebrated plaintiff's attorneys like Wylie Aitken and Mark Robinson.

He brought in attorney Andrew Lundberg, a top hand in dealing with insurance firms, and added a researcher to dig through the diocese's insurance policies back when the alleged abuse occurred. An early key goal was to get insurance carriers to accept "a reasonable percentage" of the settlement.

Callahan's team began negotiating in fall 2003 with Judge Peter Lichtman in Superior Court and retired Judge Thomas Nuss in private mediation - while also preparing for trial in case mediation failed.

PLAINTIFFS NEEDED A UNITED FRONT

Meanwhile, plaintiff's attorneys - a hard-headed, independent lot with individual ideas of what their clients deserved - had to come up with a single, unified demand.

"A year ago, when we started negotiations, everybody went in and made their own presentations on their individual clients," said Los Angeles litigator Ray Boucher, who served as liaison attorney with the court. "Nothing good was going to come of it.

"My primary role was to try to get all the plaintiffs on one page, and that was a difficult task. There was some distrust between some of the plaintiffs' counsels."

The plaintiffs' attorneys had "very different kinds of personalities," said the Rev. Michael Heher, diocesan vicar general. "That they were able to work together is another of the miracles of this project."

Despite the initial tension, some litigators said they were able to hammer out the global demand because these particular clients had touched them all so deeply.

"I have seen more evil than what I ever expected to see doing civil litigation work" because of these cases, said Katherine Freberg, who represents 33 of the 90 plaintiffs. "You really cannot fathom what these victims go through until you live with them on a day-to-day basis. They have touched my life in that way."

Most of the attorneys felt the same, Boucher said.

"Whatever came of it was going to be good even if we didn't earn a dime and half us went bankrupt was the prevailing view - not among everybody, but most," he said.

A joint demand would allow the diocese to go to its insurance carriers and say: If you come up with this much, we will all resolve the cases.

consensus AMONG ATTORNEYS elusive

But peace did not reign. Some attorneys wanted to pressure the diocese into accepting, others wanted negotiations and still others wanted to prepare for trial.

By midsummer, attorneys began walking out of talks. Unless a settlement was reached quickly, a trial date would be set. For the diocese and the carriers, it was a significant threat.

"Armageddon," Boucher called it.

In court, some clients might lose, but others might bankrupt the diocese.

By Nov. 29, the original judges had taken the negotiations as far as they could go. Enter Judge Owen Kwong. Armed with his reputation as a closer, he launched the four-day negotiation marathon.

He worked through dinner and lunch breaks. He kept attorneys at the courthouse well after 5 p.m. when the doors were locked. By his second day, the beige, windowless, circa 1960s Stanley Mosk county courthouse in Los Angeles began to play a role in the deal.

The old building offers few technological amenities.

"You could sometimes stand on one 2-foot-square space in a hallway corner and get one bar on your cell phone, and if you didn't move your head at all you might be able to speak to somebody," plaintiff's attorney Shaina Colover said.

Cell-phone calls between attorneys and mediators inside the building were impossible. Isolation fed the anxiety to reach agreement.

As negotiations heated up on Dec. 2, retired Judge John Trotter set up a sort of ad hoc switchboard at his home, taking calls from attorneys in one part of the building and relaying their messages to attorneys elsewhere inside. Additional courtrooms opened for nearly 80 negotiators to meet.

"During those last six hours there were two or three times when (Brown) said: 'Oh, this whole thing is coming apart,' " Heher said. "It was a roller coaster all the time like that."

Once the attorneys agreed, Brown still had to get approval from three entities as required by church law: a group of 12 diocesan priests considered his top advisers, the diocesan finance council and the Vatican.

Dinnertime came and went. Attorneys shared snacks and high hopes.

iT finally CAME DOWN TO THE DOCUMENTS

Most of the past four days under Kwong's guidance had been about money. In the last hours, it came down to the records.

The diocese was betting that plaintiffs wouldn't hold their ground on the documents, Boucher said.

Heher said the diocese's concern was not only which papers would be released but who would release them and how.

In the end, it was decided a judge would make those decisions. The records will go to the court by Jan. 31.

That point not only sealed the deal, but won Brown the embraces of victims at the courthouse that night.

Monday, after four weeks of fine- tuning and collection of signatures, the formal announcement was made.

"I think the reason this all worked - besides the grace of God - was number one, because the bishop wanted it to," Heher said.

Plaintiff's attorneys agreed.

"It turned out (Orange) had a bishop willing to show some courage and try to do the right thing," Boucher said.

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Bishop Tod D. Brown: Brown came to Orange County in 1998 after serving nearly a decade as the Bishop of Boise, Idaho. He was a classmate of Los Angeles Cardinal Roger M. Mahony at St. John's Seminary in Camarillo. He has been a strong proponent of zero-tolerance of sexual abuse and was appointed to the Pontifical Councilon Interreligious Dialogue because he is known for fostering ties with other faiths.

Raymond P. Boucher: Court-appointed liaison attorney for plaintiffs in the Diocese of Orange sex-abuse cases is a trial lawyer specializing in consumer lawsuits. In 2002, he wasnamed one of the "Top 100 Most Influential Attorneys in California" by the Daily Journal, a legal newspaper. Boucher got hislaw degree from Pepperdine University in 1984 and is a partner with the Beverly Hills firm Kiesel, Boucher & Larson LLP. He represents 270 abuse claimants in cases against the Archdiocese of Los Angeles.

Peter M. Callahan: Lead defense attorney for the Diocese of Orange is a product of 19 years of Catholic education, including a law degree from Loyola School of Law, Chicago. Primarily a defense lawyer, he has tried a number of plaintiff claims and was co-counsel in a 2001 wage-and-hour class action lawsuit by Radio Shack employees that resulted in a $30 million settlement, the largest such award at the time. Callahan has represented the Diocese of Orange on behalf of their insurance carrier, The Atlantic Companies, since the diocese was formed in 1976.He is a founding partner of Callahan, McCune & Willis, LLP, which has offices in Tustin, Los Angeles, San Diego and San Francisco.