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How Security Executives Can Leverage Expert Witnesses

July 1, 2012
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Awakened from a deep sleep by the midnight call, the corporate-level chief security officer of this Fortune 500 Company knew he was in for a nightmare. His director of security for the firm’s Texas manufacturing facility was on the brink of panic. “One of our employees gunned down, execution-style, a female coworker at the time-clock, fired multiple shots at other employees, and then blew his brains out in the cafeteria.  The police are here. It’s bad – real bad.”  The CSO knows how the rest of the story will unfold, because local management had severely underestimated future risks when the employee was involved in a serious altercation with the same coworker months earlier.

Security directors’ and executives’ careers are dramatically altered when the unthinkable happens. The loss of human life, coupled with the loss of trust by coworkers and senior executives, puts careers in jeopardy. Most organizations wait for legal counsel to retain expert witnesses only after lawsuits for negligent hiring, security, supervision, premises liability and failure to warn are upon them. Yet, many enterprising security leaders follow the longstanding practice of having experts already in place, rather than waiting for tragedy and subsequent litigation to strike. 

In this case, which is true, “John” had applied for a job based on the referral of a current employee, “Mary,” who was also his wife. John truthfully completed the employment application, including answering “No” when asked if he’d “…been convicted of a crime in the last seven years.” He also passed the background check, which only covered the past seven years largely due to HR and legal counsel’s reliance on EEOC guidelines, which are meant to avoid hiring discrimination.

A year into John’s employment, the plant security director, a security officer, and a plant supervisor respond to a call reporting a fight in the employee parking lot. It takes all three men to pull John off Mary, who is lying motionless on the pavement as John continues to strike her in the head. Police and emergency responders arrive in minutes and feverishly resuscitate Mary, who is in in cardiac arrest. Their quick response saves her life, though it will take six months for her to recover from her brain injuries. John is arrested and charged with attempted murder. One of the police officers asks the security director if the company screens its employees, and if HR is aware that John had been released from the Texas Department of Corrections three years earlier, after serving 22 years for the murder of his first wife. If the background report had researched his full criminal history rather than only looking back seven years, the company would not have missed this enormous fact. 

The Texas facility’s security and HR directors document the incident and report it to the CSO and to corporate HR. As John is held in jail pending trial with a $500,000 bond, HR decides not to terminate employment, despite the eyewitness testimony of the three employees, because he had not yet been convicted of the crime. Firing employees based on arrest records without convictions was against corporate policy. Management was concerned he would sue.

Mary eventually returns to light duty. On her first day back she meets with the plant’s HR and security directors, demanding to know what the company will do when John is released on bail and attempts to kill her again at work. They try to reassure her that John is unlikely to be released from jail especially since he is being held for violation of lifetime parole in addition to the attempted murder charge. The security director later testifies that Mary was dismayed, stating, “You don’t know John.  He’ll get out and kill me. He has been calling from jail saying he will kill me before going back to prison.”

Two months before that fateful day’s shooting, John’s bail is reduced and he is let out of jail. Mary’s fears are realized largely because the company failed to warn its managers, much less it employees, that he had been released. One day, he shows up early to work and, going unnoticed, clocks in. He walks up to Mary, who is clocking out, and shoots her in the back of the head. He unloads three more fatal shots into her head and chest. He reloads, fires 13 more rounds, saving the last bullet for himself.

The company is forced to defend their actions in a lawsuit for negligent hiring, supervision, retention, failure to warn and general negligence. After a multi-million dollar settlement to Mary’s children, the CSO, security director and HR executives are fired. 

Though most can’t imagine making the litany of mistakes that occurred in this case, it serves as a reminder that neither complacency nor ignorance are options, and are never a legal defense as employers are held to the standard of what they knew, or reasonably could or should have known. Thus, security and HR executives are beginning to use security experts before a tragedy as an integral part of risk mitigation and security planning. Experts help protect the enterprise and its most important assets: employees and the public.

 

 

Using the Expert at the Earliest Warning Sign

Dan Doyle, CPP, the senior vice president and chief human resources officer for Bealls, Inc., has been a longstanding proponent of leveraging experts to mitigate risks. “We’ve found that using our experts along with the attorneys that litigate cases before we are sued has saved us from unreasonable or high dollar verdicts and prevented litigation all together,” Doyle says.  “In one case alone where a shoplifter was injured in an apprehension, our expert’s opinion found we had no duty to cease a lawful arrest based on Florida law, which had been considered by our legal counsel.”

 

Finding Experts

“There is no shortage of experts,” says James Glober, a board-certified civil trial attorney from Jacksonville, Fla. “But the best have the ability to comprehend the entire case, to analyze the testimony of every witness and to articulate opinions in a strong, yet clear manner that juries are able to believe. We retain experts that have been put to the test in court.” Often, security managers find the best experts at seminars, simply by hearing their presentations. An expert who puts an audience to sleep is sure to have the same effect on a jury.

How do two equally qualified experts come to opposing opinions? One common strategy is for opposing counsel to limit the scope of the expert’s work in an attempt to keep the focus away from less-favorable facts or testimony. Glober gives his experts the entire file to avoid being ambushed at trial. His expert helps draft deposition and trial questions, as well as themes. “In one instance,” he recalls, “questions written by our expert forced the plaintiff’s expert testimony to differ from his report, and he came to agree with our expert.” 

 

Experts as Trainers

“Outstanding trainers who are also expert witnesses keep employees engaged and part of the learning process,” says Jeff Spivey, CPP, a past president of ASIS International. Employees and managers who have experience with mock trials, depositions and making real-world decisions keep companies out of the courtroom.

Doyle agrees, stating, “Our experts know our policies and procedures, help conduct training and threat assessments, and often bring a multi-dimensional perspective that senior management is willing to adopt.” This documentation is a company’s salvation. “There are times when the outside expert delivers the same message as our in-house personnel, but hearing from someone that we know is able to deliver powerful testimony at trial helps our team to listen and act,” Doyle adds.

 

Not all Experts are Created Equal

A solid expert will have advised for both defendants and plaintiffs. Optimally, experts need to see both sides of the coin and understand how the opposing side will view the case at hand. Verify that the expert has given testimony in similar cases that mirror legal position of your firm. Experts must be unbiased and transparent educators as to how litigation impacts the enterprise; they cannot be parrots for the highest bidder.

Craig McQuate, CPP, and a CSO, agrees. “A strong security and HR program comprehends the power of maximizing internal and external expertise. It makes the enterprise stronger and mitigates risks while reducing litigation costs that impact the bottom line. Our expert annually reviews our hiring practices in light of multi-million dollar class-action lawsuits, EEOC hearings and the growing concerns of reporting accuracy. The security expert has kept our company out of hot water.”

So, when executives ask if the enterprise can afford these recommended security measures and experts, ask if the enterprise can afford the alternative.  

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