This is the second part of a two part article that examines the world of plaintiff lawyers and some of the weaknesses in the governance infrastructures of a school that they may seek to exploit when running a legal claim.
Last week we looked at how plaintiff lawyers use:
This week we have a look at:
The student duty of care obligation is an obligation for schools and teachers not to act negligently.
Simply put, schools and teachers have a duty to take, or exercise, “reasonable care” to protect students from risks of harm that are “reasonably foreseeable” whilst they are involved in school activities, or are present for the purposes of a school activity.
When it comes down to it, the plaintiff lawyer will be looking to establish that a school failed to act as a “reasonable school” would have acted in the particular circumstances in question.
To put this in “risk speak” where there is a known hazard (and given the vast amount of literature available with respect to student safety hazards it is getting more and more difficult to argue that a hazard was not known) the plaintiff lawyer will be focusing in on whether a school has taken adequate precautions to prevent the injury occurring and/or to reduce the consequences of the risk event if it was to occur. Again in “risk speak”, has the school effectively implemented reasonable risk controls?
What actions a school has taken and whether these actions were reasonable is a question of fact to be determined in each case with the person bringing the claim having the onus of proving negligence on the balance of probabilities.
Whilst this may be an over simplification in the vast majority of cases the effective implementation of risk controls involves:
The discovery process is a plaintiff lawyer’s best friend and a school’s greatest nightmare. For those not familiar with the concept you may be surprised to learn that once legal proceedings are commenced, through the discovery process, your opponent can compel you to hand over any documents (including directors’ minutes, consultant reports etc) that relate to the issues at hand.
That means anything that you write today (including diary entries, emails, internal memos etc) could well be the subject of examination by a court in the future. The only limited exception relates to privileged documents (which generally means communications with your legal representatives).
A plaintiff lawyer or prosecutor looking to expose weaknesses in an organisation’s internal processes and procedures will target key policies and procedures and evidence of their implementation, looking for evidence of internal system failures and conflicts of interest.
The best way to mitigate this risk is to ensure all your managers and staff are made aware of the risks associated with litigation and the fact that anything that is put in writing may, and probably will, be held against them at some time in the future.
Directors and officers have to be particularly wary of long-winded consultant reports that point out in graphic detail the deficiencies in their current systems. If these reports are not effectively actioned (which is probably what the consultants want) they can sit like ticking time bombs just waiting to be “discovered” by an enterprising plaintiff lawyer.
A school’s brand and reputation can take years to build and a moment to destroy. There has been an increasing trend lately for plaintiff law firms to actively use media strategies to place commercial pressure on organisations in an attempt to get them to increase their settlement offers. Kristy Fraser-Kirk’s claim against David Jones is a prominent example.
No matter the size of your organisation, you will have a reputation to protect and you can guarantee that “reputation management” will become a critical part of dealing with any legal claims you may face.
Litigation that can adversely affect your reputation should be managed through a Business Continuity or Crisis Management Strategy. Such a strategy may, for example, involve developing a crisis management communication strategy, media training for key executives, and identifying organisations with media management skills.
Ultimately the best mitigation strategy is to avoid litigation in the first place, or if this not possible, position your school to proactively defend a claim. This will ultimately come down to having a strong policy management framework in place, through which you can demonstrate your organisation’s defence to any claims made against it.
Litigation is all about creating a set of commercial pressure points and using these as leverage against your opponent. An enterprising litigator will use every trick in their “cookbook” to get a result for their client. The legal rules of engagement place plaintiff lawyers and prosecutors at a huge advantage against their opponents because they get an “open window view” on documents created (or not created) well before anyone contemplated litigation.
Ask yourself how your organisation’s internal policies and procedures would hold up under the intense scrutiny of expert witnesses? If in doubt follow some of the risk mitigation strategies outlined in this article.