This is the first of a two part article that examines the world of plaintiff lawyers, and some of the weaknesses in the governance infrastructure of a school that they may seek to exploit when running a legal claim.
As a purveyor of governance, risk and compliance (GRC) services, we find that our clients are usually motivated by either a fear of non-compliance and potential legal claims or the significant productivity increases, good governance systems can deliver.
While we would love to think that the majority of purchasing decisions are motivated by the GRC value proposition, it is a commercial reality that the fear of non-compliance and legal claims are, more often than not (at least initially), the driving force behind change.
This two part article looks at the world through the eyes of a plaintiff lawyer, seeking to mount a claim against a school with particular focus on leveraging on weaknesses in a school’s governance, risk and compliance infrastructure.
What organisational weaknesses is a plaintiff lawyer looking to exploit? What tools does the lawyer have available to assist? What do schools have to do to mitigate their risk? What ingredients are in the “plaintiff lawyer’s cookbook”?
Here are some of the ingredients at the Plaintiff lawyers disposal and corresponding mitigation strategies which will hopefully provide some food for thought for those of you engaged in managing your school’s risk profile.
Professional Negligence, Adverse Action, Unfair Dismissal, Sexual Harassment, Bullying, Breach of Contract, Workplace Injury, Breach of Registration Conditions, Misleading and Deceptive Conduct, Directors’ and Officers’ Duties, Breach of a School’s Duty of Care, Defamation, Privacy Infringements, Intellectual Property Disputes, Corporations Act Breaches etc. The list goes on. Some of these claims are purely civil in nature, others also have criminal elements. Wherever a claim comes from, a school and its directors and executive management team, need to be prepared to defend their position.
At the heart of Sun Tzu’s Art of War is the concept of “know your enemy”. Well, in this modern age what better place for a plaintiff lawyer to start than publicly available information on the internet?
It’s simply amazing, the information that school’s post on their public websites that can provide useful material for enterprising plaintiff lawyers in prosecuting their case.
The best place for a plaintiff lawyer to start is usually a school’s Pastoral Care statement. These statements often make references to such things as “ the holistic development” or “promotion of the well being” of each student in an “environment where every student feels valued”. These types of “feel good statements” are gold for a plaintiff lawyer representing a student with developmental problems, who has been repeatedly bullied and suffers psychological injuries as a result of a school’s failure to respond appropriately and in a timely manner.
A simple mitigation strategy is to ensure that your school effectively implements a Promotional Materials Policy, which includes procedures for approving the content of annual reports, brochures and web content before it is published, to ensure that they do not contain potentially actionable statements. Often a slight change in wording can effectively mitigate this risk. Of course it is also critical for a school to actually do what it says it does and to be able to demonstrate this through relevant programs and policies (e.g Pastoral Care Program) and records showing the program in action.
If you want to know schools “from the inside” you need to go no further than its internal policies and procedures. Specifically what lawyers are looking for is either (a) an absence of policies (e.g. “no sexual harassment policies were in place Your Honour”); or (b) policies that are not being followed in practice.
Either way, where a school does not implement an effective policy management framework, the plaintiff lawyer or prosecutor usually wins and the school and its directors and officers usually lose.
Over the years we’ve come across many executive managers who have refused to write down policies because they have had a “bad litigation experience”, where lawyers have attacked them for not following internal policies.
Unfortunately we’ve seen as many organisations get taken apart for not having any policies. Try defending a workplace safety related claim with no policies in place. You won’t get far. So, once again, the risk mitigation strategy is simple. Implement an effective policy management framework focusing on high risk areas.
With the sheer complexity of the legal and regulatory obligations facing schools these days, plaintiff and prosecution lawyers start with a huge advantage.
You’ve heard the phrase “ignorance of the law is no excuse”. Well it’s more or less true. No court in the land is going to take into account the fact that a school was under cash flow pressure, or was distracted by a building project, when making a determination on a breach of Work Health & Safety obligations or a sexual harassment claim.
The simple fact of the matter is that schools need to comply with the laws and regulations that apply to them. Of course, many schools get away with being non-compliant for long periods of time. However, as they say in the legal profession “it’s not a matter of if it’s going to happen, it’s a matter of when” and of course if you are facing a claim “it’s already happened”.
The mitigation strategy is, of course, implementing an effective Compliance Program. The Australian Compliance Standard AS 3806 provides a good starting point and is referenced by many Australian regulators including ASIC, ACCC and AUSTRAC, as well as the ASX (not strictly a regulator, however, the ASX still notionally oversees compliance with the ASX Corporate Governance Principles and Regulations).
If you want a fun (yes, compliance can be fun) perspective on how a compliance program can add value to your school, read Compliance – An Expensive Black hole or a Strategic Imperative?
That’s the end of Part 1. Next week we will look at: