HOW MY LAW FIRM HANDLES BULLYING, SHAMING, SEXTING, CYBER-HARASSMENT AND CYBER-STALKING CASES

This isn’t a touchy “feel good” post. I am not exploring the social or psychological reasons behind why people become bullies or intentionally try to harm others online.

What this post is about is how to come down hard on someone engaged in online bullying, shaming, sexting, cyber-harassment, cyber-stalking, sexual harassment (#metoo), and everything in between (for the purpose of this post and ease of reading, I’m going to refer to all of these as “bullying.” It’s a guide to show you how to take care of business, shut things down, and hold wrongdoers accountable.

While I focus my discussion on school related bullying cases, these same approaches work with most other online bullying, shaming, sexting, cyber-harassment, cyber-stalking, sexual harassment (#metoo) situations involving victims of all ages. Here’s a short 3 minute video explaining our mindset and why we believe bullies need to be held accountable.

Before we dive too far into this post, please understand that while I’m a pretty darn good trial lawyer, I’m not your lawyer. No legal advice is being given in this post or related resources. Thank you for understanding.

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Rebecca Sedwick

Stories like the Rebecca Sedwick bullying suicide case are tragic. Just in case you’re not aware of what happened to Rebecca, here’s my understanding of the facts based upon published news reports.
12-year-old Rebecca was bullied and terrorized relentlessly for months both on and offline. After texting a friend that she couldn’t take it anymore, Rebecca jumped to her death from a high cement factory tower.

Before Rebecca’s death, up to 15 teenagers in school had reportedly been bullying Rebecca with several using social media to make their point. After her death, two of the teenage girls were arrested for bullying Rebecca and are now charged as juveniles with criminal third-degree felony aggravated stalking.

Even after Rebecca’s death, one of her tormenters allegedly continued to make online comments about Rebecca bragging about the bullying. According to authorities, this teenager wrote on Facebook:

“Yes, I bullied Rebecca and she killed herself but I don’t give a … and you can add the last word yourself.”

Click to read the entire post and see all resources…

Bullying is a Big Problem

Bullying happens every single day. The cases that seem to make the news are the ones where a victim is seriously harmed or takes his or her life. I guess that’s understandable, but it’s important to know that for every case you hear about on the news, there are thousands of other bullying cases that you never hear about. There are silent victims, and they need our help.
Bullying is a big problem, and in this post, I share several methods and suggestions to help you take on the bullies and win!

Shea Shawhan

Shea is an 18-year-old special needs student in Texas. Shea suffers from seizures due to a brain injury she suffered during birth. Despite her handicap, Shea participated in high school sports and cheerleading. Shea tried not to let her handicap slow her down.

Several of Shea’s schoolmates began mercilessly bullying her via text messages. Rather than supporting her courageous effort of trying to overcome her special needs, these students harassed and bullied Shea and wrote texts such as the following:

“Shea should just have one of her fucking seizures and die because people at west don’t want her. That’s the reason she has seizures because that’s karma for giving birth to a freaky slut.”

It’s my understanding that the school, school district, and concerned parents are stepping in to deal with the bullying. Only over time will we know if the bullying directed at Shea will stop. Until then, I think we can all agree that these teenagers should all be held accountable for their misguided and hurtful behavior.

Social Media

For many personal and business reasons, I’m a big fan of social media. However, when it comes to the issue of bullying (remember, I’m referring to all of the above conduct when I use this term), social media makes it easier for someone to be a bully. Without too much thought or effort, a teenager using social media can quickly start a bullying effort against a victim. Because of peer pressure and other reasons, more and more bullies join in the feeding frenzy and before you know it, significant damage is done, and the bullying has spread like wildfire.

Because of social media, no longer is bullying limited to a one-on-one situation. Today, the number of bullies can grow almost instantly from one person to dozens of people threatening a single victim before an audience of hundreds, thousands and even tens of thousands. In the past, a victim might be able to deal with one-on-one bullying. Today, the consequences of viral social media bullying are now understandably, unmanageable for many.

What a Victim and Family Should Do When Bullying Starts

The remainder of this post is simply my thoughts, as a California lawyer, to what rights and remedies victims of bullies may assert. This post is not about helping bullies or trying to understand the psychological and social issues behind the problem. No, this post is all about protecting the victims. It’s about showing you how to hold bullies and in some cases their parents, responsible and accountable.

For starters, I believe immediate intervention needs to take place when your child is bullied. Your biggest asset to stop the bullying is the threat of legal action so you must immediately use this tool to protect your child and send a message to the bully.

Put Everyone On Legal Notice

The first thing I would do is call the school principal and teacher and let them know exactly what is going on with respect to the details of the bullying. I would request a one-on-one meeting to discuss the facts.

I recommend sending a letter (not email) to the teacher, principal, and each member of the school district board of trustees. Your concerns need to be put in writing. You must document the problem and risks.

It should clearly confirm your concerns and why the teacher, school or school district should immediately step in and investigate the bullying. It should request that all evidence such as pictures and videos be preserved. The letter should be mailed via certified mail return receipt requested or, sent by Fed Ex or UPS so that you have independent confirmation that it was delivered. So long as you deliver the hard copies as described, it’s OK also to email the second copy to the same recipients.

By starting the process in this fashion, you are placing these people and entities on what is called legal notice. The people in charge of the safety of your child can no longer turn their heads the other way and ignore the issue. Why? Because they can now be more easily held responsible, as supervising adults, for harm caused by the bullying. You now have a receipt that they have received your written communication. This is a big deal so do not skip this step.

If the people in charge truly were not aware of the bullying issue, then your letter will put them on notice. You are shifting the duty of care and safety to these people and entities to take the bullying seriously and to take reasonable action to stop it in its tracks. You are shifting the burden to the teacher, school and district to do their job and resolve the problem. If you have the means to do so, you can and should have a lawyer write and send the letter for you. A letter from your lawyer will include citations to case law, liability exposure, and probably be more persuasive. I believe it will have a much more significant impact than a letter from you.

Notify Police and the District Attorneys Office

If the bullying appears severe and a real risk of physical or emotional harm (more than just taking your child’s seat in class or asking for half her sandwich during lunch), then you should immediately notify your local police department and also send the police agency a copy of your letter. Ask to speak to an investigator trained to handle bully and harassment cases and make a formal complaint.

Getting the police and DA’s office involved is a powerful tool. Use these resources to protect your child.

Request that a criminal investigation and prosecution take place and ask that the police officer’s report is sent to the District Attorneys office for review and possible action. Document everything in writing as mentioned above (emails and oral conversations are not sufficient). Always be organized, polite and professional. Remember, these agencies are here to help you. They are not your enemy. Document your concerns with dates, names and details and you will make their job easier during the investigation and review process.

If you know the parents of the bully and because of the dynamics believe a call or meeting with them will make a difference, then do it. Get them involved. Use some of the communication techniques found in my SlideShare on negotiation to help make things happen.

The idea is to get everyone involved as soon as you can and place everyone on notice of the seriousness of the bullying. The plan is to establish legal notice and document the facts.

The good news is that in most cases this type of affirmative approach will usually provide a sufficient check and balance to resolve the bullying and help fix the problem. People who now have notice of the bullying will be watching out for further wrongful conduct. Everyone is looking over everyone else’s shoulder to make sure they’re doing their job. The bully and her family will also now know that their every move is being monitored.

If The Harm Continues

If despite the above, the bullying continues and your child is harmed, you still have recourse. Or, if you did not find out about the bullying until after the harm was done, there are still things you can do to (1) hold the bully accountable and (2) help prevent the bully from harming someone else.
First, you need to document the bullying and harm caused to your child immediately. Send the letter I mentioned above to put everyone on notice of your concerns and harm. This written notice delivered by certified mail, Fed Ex or UPS, is critically important and will help you avoid the situation of someone claiming they didn’t “know” about the bullying.

I’ve also noticed that people are lazy and people like to avoid getting involved. Hey, it’s not their problem, so they just look the other way or sweep things under the rug. Unfortunately, this may include a small number of teachers, principals, school district officials, police officers, investigators and even lawyers at the District Attorneys Office.

Document Everything

As I mentioned earlier, one way of dealing with this lack of interest and keeping everyone honest and on their toes, at least from a legal standpoint, is to document everything in writing. Doing this forces everyone to get involved and also activates certain legal obligations that may not get triggered with an unrecorded phone call or deleted email. Pictures and videos of actual bullying and injuries are also powerful pieces of evidence that will help you document the problem. Remember the old adage, “A picture is worth a thousand words.”

Hire a Lawyer and File a Lawsuit

When we agree to formally represent a person or family who has been or is currently being bullied, we immediately send a certified cease and desist letter as described above. We explain in detail what is going on and why it needs to stop immediately. We attach to our letter a draft of the Superior Court Civil Complaint that we will file to protect our client’s rights if necessary. We have a copy of the letter and complaint personally served on the bully, his or her parents, the school administration (teacher and principal), school district board of trustees, police department and district attorneys office, together with a Statement of Damages.

After serving our letter and lawsuit, we usually give the other side 5 days to respond. If they respond, then we talk about the issue. A confirming letter is then sent documenting everything that was discussed and agreed to. Again, the school, school district, and the police department are all included in our correspondence. In most of the bullying cases, these steps are enough to get things resolved to our client’s complete satisfaction.

If the bully and parents don’t respond or their response is unacceptable, then we move forward with litigation and file our lawsuit for damages. In our lawsuit, we also ask for an injunction which is a court order prohibiting the bully and anyone associated with the bully, from coming in to contact with the victim and our clients.

Contact the Police Department and District Attorneys Office

While doing this, we also contact the police department and District Attorneys Office and follow up on prior formal complaints already made by our clients. If possible, we try to make sure the District Attorneys Office files criminal charges against the bully, and we coordinate our efforts in the civil courts with the criminal prosecution.

When we do move forward with our civil lawsuit, we have the lawsuit personally served on the bully and her parents by a professional process server or police officer. We also include a statement of damages which sets forth the money damages our client is entitled to for her injuries and harm. This would also apply in a wrongful death case.

We use professionals to serve the legal documents because (1) we want this done correctly and (2) we want to make the right first impression. We want the defendants, because that’s what they now are, to understand and appreciate that we are taking our lawsuit seriously. The gloves are coming off, and we’re calling the shots now, not the bully, the school system, police department or district attorney’s Office. Whether they like it or not, everyone is now playing by our rules.

In addition to seeking a temporary restraining order as well as preliminary and permanent injunctions, we also allege substantial money damages to compensate our clients for their harm, and to make a strong point that the bully’s misguided actions have consequences. In most instances, we seek punitive damages above and beyond the special damages to deter and punish the bully for her wrongful conduct.

Attorney Fees

In many instances, a civil lawyer will handle this case on a contingency fee basis. What this means is that the attorney will receive payment for his or her services out of a final settlement or verdict. You don’t have to spend any money up front to protect your legal rights.

In other situations, a lawyer may agree to get involved and help based on an hourly fee agreement. Every case is different, so it’s best to discuss options with your lawyer to see what works best for you. Depending on the facts of your case, you may be entitled to reimbursement of attorney fees once you prevail against the bully and/or her family.

Causes of Action

Depending on the facts, our lawsuit will allege causes of action including, but not limited to, assault and battery, negligence, emotional distress, harassment, civil conspiracy, defamation, sexual battery, stalking, invasion of privacy, and fraud.

If the teacher, school or school district failed to act appropriately or otherwise protect the student from bullying after being placed on notice of the problem (remember the letters I asked you to write), then they may be included as defendants based on several additional legal theories. If the bully’s parents knew or should have known of the wrongful conduct by their child and failed to correct the problem, they too may be included in the lawsuit based upon statutory parental liability laws or a negligent entrustment cause of action.

In all of these cases, there are strict time limits that you must comply with or your claim will be forever barred. While I am a lawyer in California, I am not your lawyer. Each state is different so consult an experienced lawyer immediately if you think you have a claim that needs to be pursued against a bully or any of the above people or entities.

Again, all of this potential exposure, litigation, and liability are clearly outlined in the earlier letters I recommended and in most cases, this serves as a sufficient incentive for everyone to get off their asses and do their job to make sure the bullying stops and your child is protected.

Sometimes because the bully and her family don’t know any better, they continue to fail to accept responsibility and make excuses. Because of this, the lawsuit makes its way all the way to trial. The good news is that jurors have little if any, tolerance for the harm caused by bullies and if tried correctly, the consequences to a bully and the resulting verdicts can be substantial.

Although not a school case, one example that comes to mind is a case we handled several years ago. We agreed to represent a family who was harassed and bullied by their neighbors for years. While this was happening, our clients tried to take the high road and deal with the name calling and inappropriate conduct.

However, one morning the neighbor struck our clients’ dog with a baseball bat sending it yelping and tumbling head over tail down the backyard slope with a broken leg. As you can probably imagine, that was the straw that broke the camel’s back and the family was referred to our office by a mutual friend.

To make a long story short, we filed a lawsuit and took the case to trial. We asked a jury to hold the defendants responsible for their wrongful conduct which they did. In addition to helping our wonderful clients, we were also able to make new California law along the way.

Conclusion

Each case of bullying is different. Whether or not a civil wrong or crime has been committed depends on the facts of each case.

An analysis of the evidence must be undertaken to determine if the bullying was a one-time incident or a prolonged effort to destroy someone’s life.
In many California schools, there is a zero tolerance rule. If a student is caught bullying another student, the bully can be placed on suspension or even dismissed from school. Using this zero tolerance rule as leverage against the bully is a powerful tool. Unfortunately, not all states have a zero tolerance rule.

The biggest problem with bullies is not immediately calling them out on their actions and holding them accountable. You must take action. There must be consequences, or the bully will continue to harm others.

It’s important for adults to be a good example for their children. Talking and interacting with your children and making sure you know what is going on in their lives is an excellent first start to avoiding the entire bully problem. Most children and teenagers don’t really know just how much you can help, and they carry this massive burden of being bullied around on their shoulders without any guidance or understanding as to how to deal with the problem.

Parents who do get involved need to get everyone else involved immediately. Whether they want to or not, putting everyone on written legal notice of the bully problem like I described above, will in most cases be enough to get the problem resolved. Remember, you’re shifting the burden of responsibility to help monitor and address the issue and when it comes to bullying, the more people handling the problem, the better.

When you take a step back and think about it, the bottom line is that it’s all about the safety of our children. If teachers, parents, principal, the school district or even a police agency is “inconvenienced” because of your concerns, that’s their problem and not yours. Be diligent and send letters and make follow up phone calls. Set meetings and get people and agencies with authority involved. This approach will help you protect your family and will also send a message to the bully and his or her family that this kind of conduct will not be tolerated.

Remember that the court system is your court system. When it comes to bullying, the legal system is there to help protect your child and hold the bully accountable for her wrongful conduct. Having said this, do not ever be afraid to get a good lawyer involved to protect your family and hold wrongdoers accountable. My experience has shown that the earlier you get a lawyer involved, the faster you will be able to protect your child and fix the problem.


Related Resources and Posts:

Why It’s Socially Responsible To “Call Out” Habitual Distracted Drivers

“SHAME NATION- Choosing Kindness and Compassion in an Age of Cruelty and Trolling” by Sue Scheff with Melissa Schorr and foreword by Monica Lewinsky (Mitch was a contributing expert in the book)

Dr. Michelle Drouin and I Chat about Distracted Driving, Cyber-Bullying and More

How to Stop Internet Trolls

Why I’m Proud To Be a Trial Lawyer (My Rant)!

Author: StreamingLawyer

Live streaming law and life

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