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From O'Malley, a compassionate appeal
By Kevin Cullen, Globe Staff, 9/10/2003
"Our credit cards are maxed out," O'Malley told the lawyers Sunday night, as they huddled inside the Brockton offices of Paul A. Finn, the mediator who brought the two sides together for what turned out to be the beginning of the end of the long, arduous legal portion of the clergy sexual abuse scandal that engulfed the fourth largest archdiocese in the United States.
O'Malley's earnest approach worked. He persuaded the lawyers who had sued the archdiocese that it would go broke if it paid more than $85 million. He stuck it out all night Sunday, showing his fatigue only by, at one point, resting his head on a table as Finn shuttled between the various parties. And by yesterday, with more concessions from O'Malley's top aide in hand, the plaintiffs' lawyers were ready to sign an agreement and urge it on their clients.
While Sunday night's personal appeal by O'Malley to the plaintiffs' lawyers provided a dramatic coda to the legal odyssey, it was O'Malley's low-key but persistent private appeals to alleged victims that made yesterday's tentative agreement possible and will make or break the deal, according those at the center of the negotiations.
They give great credit to O'Malley's effort to convince the victims that he was sincere in wanting to transform a dry, legal process into something more like an act of healing. It was a strategy first employed by O'Malley and his handpicked lawyer, Thomas H. Hannigan Jr., 11 years ago when they settled more than 100 claims against a priest in the Fall River diocese O'Malley then headed.
And it was a strategy that proved successful again when O'Malley convinced the lawyers representing most of the plaintiffs that besides financially compensating victims for the abuse they suffered at the hands of priests, he wanted to help make them spiritually and emotionally whole.
"This was never just about the money," said Roderick MacLeish Jr., whose law firm, Greenberg Traurig, represented some 260 of the plaintiffs, and who represented nearly all of the victims who settled with the Fall River diocese in 1992. "And there hasn't been one momentous breakthrough. It's been an evolution, an evolution of good faith."
MacLeish's colleague, Robert Sherman, said that O'Malley had established his credibility with plaintiffs and their lawyers before he arrived for the 6 1/2 hour session Sunday night.
"That same message coming from Cardinal Law would have been dead on arrival," said Sherman. "When Archbishop O'Malley said he couldn't give any more, we accepted it. We tested what he said, but we have come to accept the archbishop as a man of honesty and integrity."
O'Malley's offer to meet last Saturday with a group of alleged victims in a formal mediation session was the most dramatic of several carefully considered gestures he has made since his July 30 installation as archbishop to demonstrate that he wanted to be as sensitive to them as they contend his predecessor was not.
The day after his installation, in one of his first public acts, O'Malley pushed aside Law's longtime lawyer, Wilson D. Rogers Jr., who had antagonized alleged victims with his hardball tactics, and made Hannigan the archdiocese's lead lawyer on the abuse cases.
A week later, O'Malley offered to settle the cases for $55 million. The plaintiffs dismissed the offer as too low, but after a year of what they considered church foot-dragging, it was the speed and resolve O'Malley had shown that impressed them most.
"We accomplished more in the last month than we had in the previous 18," said Carmen L. Durso, a lawyer who represents 42 people with claims against the archdiocese.
Outside the negotiations, O'Malley was slowly but surely winning over a growing number of alleged victims who had been bitterly alienated by Law's response to the scandal.
Gary Bergeron, 41, who said he had been abused by the late Rev. Joseph E. Birmingham in Lowell, was among 15 alleged victims who met privately with O'Malley at a home in Hudson, N.H., two days after the initial settlement offer.
Two weeks earlier, Bergeron had put aside his anger over the archdiocese's response to the scandal by attending O'Malley's installation. Bergeron seemed to speak for an increasing number of those with claims when he said, "I think O'Malley really cares."
Not everyone agreed. Another alleged victim spit on Bergeron as he entered the Cathedral of the Holy Cross to attend O'Malley's installation.
The changes that O'Malley quickly ushered in were as much about style as substance. Law and his lawyer had used an adversarial approach to litigation, which many considered insensitive given the nature of the abuse alleged and the church's pastoral mission.
In marked contrast, Hannigan told the plaintiffs that O'Malley was willing to drop all defenses and not challenge any of the allegations. Legally speaking, O'Malley was saying, "I believe you."
Of the seven main provisions of the initial proposed settlement, the plaintiffs took special notice of the last one, in which the archdiocese promised to "continue in place its counseling program for abuse victims, whether or not they opt into the settlement, as a separate and ongoing pastoral program."
It was, lawyers said, the first time that the archdiocese acknowledged that whatever the financial outcome, the plaintiffs would be dealing with psychological scars for years to come.
The plaintiffs were miffed, however, by another of the seven points, which said that the offer was contingent on at least 95 percent of claimants opting to accept the settlement within 30 days. That seemed too many like the church once again dictating terms. But as Hannigan continued to meet with the plaintiff steering committee, the archdiocese gradually backed away from that demand, agreeing to an 80 percent threshhold, and pushing the negotiations forward.
The negotiations took on an even more somber tone after former priest John Geoghan, a serial pedophile, was killed in prison by another inmate Aug. 23. It was Geoghan's repeated attacks on children, and the way his superiors covered up his crimes, that blew open the scandal in the first place. While it stirred a variety of emotions among alleged victims, Geoghan's death served to focus minds and attention at the mediation sessions.
"I think it reminded everyone of the seriousness of the situation. Lives were literally at stake," said MacLeish. There were other reminders, he said. "In the middle of this, one of our clients died unexpectedly. He left behind an 18-year-old daughter."
What was being said outside, even on the altar, was being scrutinized, too. O'Malley did not offer prayers in public for Geoghan, who had been treated leniently by Law. O'Malley's not mentioning Geoghan publicly was interpreted by some alleged victims as being a gesture of sensitivity aimed at them.
"I can tell you one thing," said MacLeish. "It was noticed."
Also noticed by victims was O'Malley's response to the family of Gregory Ford, a 25-year-old Newton man who says he was raped by a priest almost 20 years ago.
When Ford, who said the Rev. Paul R. Shanley abused him, suffered an emotional breakdown a week after Geoghan was killed, O'Malley immediately agreed to pay for specialized residential treatment for Ford. O'Malley had met privately with Ford's parents, Rodney and Paula Ford, and pledged to do whatever he could to help their troubled son.
Last year, Law's lawyer had sent a legal response to the Fords' lawsuit against the archdiocese, suggesting the parents were negligent in allowing their son to be abused.
Rodney and Paula Ford, who had done so much to point out the failings of Cardinal Law, were now vouching for his successor, an endorsement that carried enormous weight inside the tight-knit milieu of alleged victims and their lawyers.
"It was a major change," Rodney Ford said in an interview. "They reached out to my son at a time of need, no questions asked. This guy [O'Malley] has done everything he can since he got here to change the way things were done before, and he should get credit when he does the right thing."
Complicating the search for a deal, meanwhile, were differences over tactics among plaintiff lawyers as the push for a settlement intensified. With millions of dollars in fees at stake -- lawyers usually get a third of cash settlements -- and plenty of media attention, personality conflicts between some of the lawyers flared.
In particular, MacLeish and Mitchell Garabedian clashed. At one point two weeks ago, after insults were hurled, MacLeish left a mediation session at One International Place, the downtown office tower, and walked under what remains of the elevated Central Artery, to sit at Rowes Wharf and watch the boats in the harbor while trying to collect his thoughts. Apologies were offered over cellphones, and soon MacLeish was back at the negotiating table. He thanked Finn, the mediator, with "keeping things cool."
But Finn could not avert last Friday's breakdwon, when a highly anticipated mediation session Saturday between O'Malley and a group of about 10 alleged victims was canceled after lawyers at Greenberg Traurig accused Garabedian of courting a media circus outside the mediation session. Garabedian, whose legal pursuit of Geoghan had been the catalyst for exposing the scandal, countered that it was MacLeish and his colleague Jeffrey A. Newman who publicly announced that O'Malley was going to attend the session.
But the spat was not allowed to derail the larger effort. On Saturday, Hannigan called Finn, who scheduled a Sunday night mediation session. Finn suggested that O'Malley come along.
On Sunday night, the eight lawyers on the steering committee made their pitches to O'Malley and Hannigan, O'Malley made his to them, and Finn shuttled back and forth between offices as the two sides hashed out the details.
When the parties gathered again Monday at Hannigan's offices, O'Malley was preparing to leave for a meeting in Washington, and so his secretary, the Rev. John J. Connolly, attended the session in his place and helped clinch the deal. Connolly said the archdiocese opposed building a memorial to victims as a condition of the settlement, but got Hannigan to back off insisting that any alleged victim who accepted the archdiocese's offer could not pursue separate claims against other dioceses.
Yesterday, lawyers spent hours drafting and redrafting the eight-page tentative agreement. The promise of a successful conclusion had even led to a thaw among some lawyers. MacLeish and Garabedian's associate, William H. Gordon, traded laptop computers as they revised the agreement.
By midafternoon, with the signatures on the agreement, Hannigan and Connolly were on Hannigan's speaker phone, giving O'Malley the news in Washington.
"The archbishop," Hannigan said, "was pleased."
Walter V. Robinson of the Globe Staff contributed to this report.