Proposed law would end Colorado’s practice of automatically awarding attorneys fees when cases are dismissed

Sexual harassment and assault survivors face trauma that will impact them for years, and often for the remainder of their lives. Trauma is not as simple as a wound; it impacts the brain and body in ways those who have never suffered from it cannot understand. As an attorney who has represented many sexual assault and harassment survivors in court, I have witnessed how the civil legal system can help them obtain the resources they need for critical professional help and hold the perpetrator accountable to prevent other victims from falling prey to them in the future.

In Colorado, survivors who pursue civil justice also face the real possibility of personal bankruptcy. That statement may seem far-fetched in the age of the #MeToo movement, but it is true. A statutory rule in Colorado — unique to Colorado — allows for perpetrators to recover their attorneys’ fees if the case is dismissed. Judges are given no discretion, automatically required to award attorneys’ fees to defendants who win these motions regardless of the reasons for the dismissal. While some cases will bankrupt a survivor, in others the perpetrator may offer to waive their right to collect fees in exchange for the survivor agreeing to not appeal the dismissal, forcing survivors to make a life-altering choice.

In these instances, if the victim ultimately chooses to appeal the decision because they believe they have valid legal arguments for relief, they could be on the hook for up to hundreds of thousands of dollars that accrue through the appeals process if they proceed. If they choose not to appeal, they lose their chance to achieve justice, hold their abuser accountable, and ensure good law is made for future survivors. I know from experience that almost no survivors can face possible financial ruin of this magnitude. And yet, this “Sophie’s Choice” obstructs survivors’ access to the civil justice system, for the risk of bankruptcy nearly always outweighs the hope for justice.

Sexual harassment and assaults are already underreported at an alarming rate because of the challenges and public scrutiny survivors endure through the law enforcement and judicial systems. Allowing the re-traumatization and silence of people who have experienced sexual assault through fear of financial ruin – and at the hands of their perpetrators no less – is not justice.

To be clear, all civil lawsuits are subject to this Colorado statutory rule that incentivizes survivors to drop their case instead of holding their perpetrators accountable. In light of my practice, I am acutely aware of how fundamentally unjust this rule is to victims of sexual harassment and assault. Forcing survivors to choose between pursuing justice, including by declining to appeal an improper dismissal of their case, or paying their perpetrator’s legal fees is an undeniable injustice.

A new law proposed at the Colorado General Assembly – the Access to Justice Act (HB22-1272) – would eliminate this unjust rule that forces survivors to pay their perpetrators’ legal fees. Importantly, no rule like this exists in both form and practice in any other state in the country.

Corporations, governmental entities, and others are fighting this change because doing so allows them to escape accountability for the misconduct of their agents and employees. They claim that this law is necessary to weed out frivolous lawsuits, but both state and federal law provide numerous mechanisms for courts to award attorneys’ fees and costs against parties bringing frivolous lawsuits.

At a fundamental level, we need to protect the right of survivors to access our civil justice system without the risk of personal financial ruin, at the hands of their perpetrators no less. Those who have the financial means should not be the only ones to obtain civil justice. A system that works only for the wealthy and privileged is a broken system that needs to be fixed.

Laura Wolf is a Denver attorney advocating for individuals’ civil rights.

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Guest commentary: Colorado law makes access to justice a financial decision