By Howard Levitt and Kathryn Marshall

For most people though, counter-complaints will not pay off. And it comes with significant risks

We have noticed a disturbing trend: When a victim of workplace harassment or abuse makes a complaint, his or her abuser often turns the tables.

This retaliation takes many forms.

Counter-complaints are one. A victim will file a complaint, and the accused responds by filing his or her own complaint. The counter-complaint may even allege that the victim was the aggressor. The victim then becomes the subject of an investigation. Certainly not what they signed up for.

Another trend arises in the context of a lawsuit. A victim sues for damages for workplace misconduct and gets slapped with a countersuit for defamation.

This tactic, and it is indeed that, has made it more difficult for genuine victims to come forward. As lawyers, we can always prepare our clients for the unfortunate reality that they may not be believed and that their abuser may attempt to discredit them. We can also brace them for the potential retaliation that they may face for blowing the whistle, or the social stigma they may encounter. These negative repercussions have been around for a long time and are widely known.

But preparing someone who has experienced the worst forms of harassment and abuse for the potential that they may face a counter allegation is more difficult.

But this is the climate we are living in and, as lawyers, we must brace our clients for the worst.

What has triggered the propagation of this particularly insidious tactic?

While it has been growing in popularity for some time, the most recent accelerant seems to have been the success that Johnny Depp had in his much-publicized defamation trial against his ex-wife Amber Heard. She made abuse allegations, and Depp sued her. Heard was lambasted in the media and Depp became a poster child for victory over (allegedly) false allegations. He is now on a reputation restoration tour, apparently successfully

At first, Depp was criticized for suing Heard. It looked like a bully move — to go after a victim. But ultimately, it worked.

For most people though, this tactic will not pay off. And it comes with significant risks.

The courts have not hesitated to award punitive damages in cases where a victim was forced to defend a baseless counterclaim. The courts recognize that defendants bring counter allegations for the purpose of embarrassing plaintiffs or deterring them from proceeding with an action. They punish this conduct by awarding punitive damages and costs.

An employee can also lose their job for making false complaints.

But these days people appear to be more willing to take that gamble.

Countersuits are becoming more aggressive, and outlandish counter-complaints are becoming almost normative.

The social stigma surrounding “going after a victim” has dissipated.

Defence lawyers and PR professionals are now encouraging this move which they used to discard as too risky, with the potential for backfiring too great.

This trend of going after the victim has, no doubt, created a chilling effect.

As if victims needed another reason not to come forward.

When dealing with this tactic, it is important to act strong and swiftly. Make it clear that you won’t be deterred by a counter-allegations or a bully lawsuit, and that you will seek additional costs and damages from the court.

Prepare yourself mentally and emotionally for the reality that your abuser may come at you with his or her own allegations. Understand that it is an intimidation tactic and not based on anything real.

But most importantly, don’t let on that you are scared by any of this. Abusers feed off fear and exploit it to their advantage.

In time, this trend will hopefully decline. Maybe it will take a high-profile case backfiring to spark that decline.

But in the meantime, we must fight it, and not let it be a barrier to seeking justice.