Avoiding Unnecessary Lawsuits in Schools

TASA ID: 468

On Thursday, September 12, 2013, at 2 p.m. ET, The TASA Group, Inc., in conjunction with education and school expert, James Monk, presented a free, one-hour, interactive webinar, Avoiding Unnecessary Lawsuits in Schools.

During this program, our presenter covered:

1.       Types of Common, School-related Lawsuits

a.       Student injury (caused by a peer or teacher)

b.       Facility maintenance (unsafe conditions)

c.       Failure to supervise (teachers and students)

d.       Not posting and explaining rules and regulations

e.       Failure to assign staff properly (security, teaching, aide, custodial, administrative)

f.        Personnel records oversight (finger printing and background checks)

g.       Failure to recognize and take corrective action relative to drug dependency and bullying

h.       Failure to take drastic measures in dealing with incorrigible students (repeat offenders)

2.       What specific steps can you take to avoid common lawsuits?

3.       What resources are at your disposal when faced with seemingly insurmountable problems?

4.       Do you know how much is spent on litigation of student and staff claims each year?

5.       What else could that money be used for in schools? 

About the Presenter:

Dr. James A. Monk has served as an expert witness and administrative law judge in over 300 cases nationwide.  He holds a doctoral degree from the State University of New York, with post-doctoral studies at Syracuse Law School.  At age 29, Dr. Monk became the youngest school superintendent at Laurens Central School District in New York State, where he revamped the entire vocational education program with a team at the regional Boards of Cooperative Educational Services (BOCES).  He also made contributions in the restructuring program, establishing the middle school concept and redistricting three elementary schools for South Jefferson Central School District.  Dr. Monk has also served as a technology consultant for New England schools with Apple Computer Corporation.  He is a Fulbright Scholar (1986) and was the president of SE NY Regional Superintendent's Association (1984-1985), to name a few of his accomplishments.

In addition, he was an administrative law judge in New York and Connecticut from 1988- 2013, where he served the departments of education in the area of special education.

As president of Frontline Associates, Inc., Dr. Monk provides consulting services with leading law firms and school organizations in the areas of safety, supervision, teacher misconduct, child abuse, disabilities, wrongful termination, injury lawsuits, and the use of technology.  

Transcription: 

Brooke: Good afternoon and welcome to today's presentation, "Avoiding Unnecessary Lawsuits in Schools." In our presentation today, we will cover issues that are related to lawsuits in school that include Facebook comment school-related lawsuits, what specific threats to avoid common lawsuits, student injury, and failure to [00:01:19] staff properly as well as other topics.

Our presenter today is Dr. James Monk. Dr. Monk has served as an expert witness and administrative law judge in over 300 cases nationwide. He holds a doctoral degree from the State University of New York, with post-doctoral studies at Syracuse Law School. At Laurens Central School District in New York State, he revamped the vocational education program with a team at the regional Boards of Cooperative Educational Services. He has made contributions in the restructuring program, establishing the middle school concept and redistricting three elementary schools for South Jefferson Central School District.

He is a Fulbright Scholar and is a former president of Southeast New York Regional Superintendent's Association. As president of Frontline Associates, Inc., Dr. Monk provides consulting services with lead law firms, school organizations in the areas of safety, supervision, teacher misconduct, child abuse, disabilities, wrongful termination, injury lawsuits, and the use of technology.

During today's presentation, we urge you to ask questions at any time by using the chat feature that's located at the right of your screen. Tomorrow morning, TASA will send an email with a link to an archived recording of the webinar as well as link to the PowerPoint presentation used. Also, please, before leaving the presentation today, TASA asks you to take the time to fill out the survey that appears on your screen after the program. I will turn the presentation over to Dr. Monk and then we'll begin. Dr. Monk, the presentation is now yours.

Dr. Monk: Thank you, Brooke. Good morning to some of you and good afternoon to others. I know we have an audience from around the nations here. And I welcome the opportunity to speak to all of you. One of the very first things that I would like to do is to determine whether or not you consider yourself to be a plaintiff's attorney in school-related legal matters or a defendant's attorney, or neither, I'd like to know that also. So, in your chat section, to the right of your screen, I'd like you to just simply type in, "Typically I am a plaintiff's attorney handling lawsuits against schools," or, "Typically I am a defendant's attorney depending school systems of school districts." Or again, you may be neither, but I just want to get a good feel for who I'm talking to. And I do want to gear the presentation to attorneys from both sides. And the way I'm going to do that...and I want to begin my slides and I don't see...I'm not seeing a change in slides.

Brooke: Okay. Let me just click over to one of the other names that you have here.

Dr. Monk: "You are now the presenter," it says.

Brooke: Okay, is that [inaudible 00:04:53]?

Dr. Monk: I'm assuming all I have to do is click each time.

Brooke: Correct, at the top of the screen.

Dr. Monk: Yeah. Anywhere at the screen. It's saying, "You are now the presenter" again.

Brooke: Okay. Go to the top right-hand corner where your slides to say slide number three.

Dr. Monk: I got it. Okay. All right, thank you. Yeah, little technical glitches, but anyway, at this point, I'm going to be talking to about avoiding unnecessary lawsuits in schools. And I'm going to approach this from the position that there are a variety of areas, a variety of steps that attorneys can take with regard to assisting both the plaintiff and the defendant in lawsuits. I was a former school superintendent for 17 years in New York. And now I am an impartial hearing officer in New York State and also an expert witness serving probably about 150 attorneys in the Metro New York area. And I wanna talk about some of the common lawsuits that I come in contact with. And I wanna talk to you about some of the unique features or aspects of some of these lawsuits, which hopefully will give you insight into ways in which to approach...

Brooke: Dr. Monk, sorry to interrupt you. We have an individual who cannot see your slide. So we're trying to...

Dr. Monk: I'm on the Student Injury slide.

Brooke: Okay.

Dr. Monk: And I'm not sure why they can't see it? Is it from their end or...?

Brooke: I'm not sure. Okay, so what I'm gonna do is I'm gonna make myself the presenter to avoid any further confusion and you just let me know when to advance to the next slide.

Dr. Monk: I'm on Student Injury in the first set of list five different kinds of possibilities.

Brooke: Okay, thank you.

Dr. Monk: Now, what happened here, somebody just reverted back to my...the slide number one for me, but now it's back. Okay. I am on the right slide now. And you are too?

Brooke: Yes, I am. You just let me know when you're ready for the next slide, and I'll evince it for you.

Dr. Monk: Okay. So here we are on the Student Injury slide, and the first item on that slide it indicates choke case. What I wanna do is I want to relate to you a matter that I was involved in and explain to you how what I think was an avoidable tragedy, could have been avoided. And also explain to you what position attorney should take on both sides on something on an issue like this.

This choke case was an actual case in New York City. It's fairly recent. And what happened was a nine-year-old student actually proven later to have choked on a meatball while eating lunch in the cafeteria. And the student actually succumbed at that time. And there were a couple of things that occurred which were fairly tragic in nature. And I want to relate to you in terms of its implications legally. I think this was an avoidable tragedy. There is a regulation in the school district where this took place that there should be at least one individual on each school site, who would be trained in both CPR and the Heimlich maneuver.

And post-mortem, the concern or issue that was expressed ones that had someone administered the Heimlich maneuver and/or CPR to this student, that student would have survived. And this is a clear indication from my perspective of noncompliance with local regs. Because what happened was, no one knew on-site who to contact. Although there was a trained individual at the school site, no one knew who that was, it wasn't publicized well enough. So for 8 to 10 minutes, people were scrambling around doing things very extemporaneously and very inconsequential. And everyone that attempted to solve the problem failed to do that.

So there's two issues from my perspective in this particular case. Number one, the school district must comply with the local regs. And secondly and more importantly, the school district needs to have established specific safety procedures, assuring that every individual within the school systems, and particularly in this case within school building, knows who to run to or who to call upon when an issue...when a CPR or Heimlich maneuver capable individual is needed. And, in this case, that didn't happen, which was very tragic.

The next case that I wanna point out to you, and either these seem like fairly insignificant incidents, but they turned out to be fairly significant as a result of, in the first case, we lost a small child, which was extremely tragic. And the second case, I call it the Pencil I case or the Pencil Injury case. And what occurred here was that an individual teacher left the classroom and left the classroom in the command of an aide who was completely unqualified to handle the disciplinary demands of this particular classroom. It was a classroom of emotionally disturbed students.

The teacher, who unfortunately admittedly subsequent to the incident admitted that he had very poor control of the classroom, something he never should have done, but he did, left the classroom in the hands of an aide who had never worked with emotionally disturbed children and had no idea how to control them or how to exercise any kind of discipline. And that's an unfortunate case where the administration, which just simply lacks in finding individuals, qualified individuals to do the job.

And from my perspective, it's very important in terms of whether you're the plaintiff's attorney or the defendant's attorney in this matter. It's important to determine whether or not there were qualified and certified individuals present during an incident, and what specific steps they took to take any action as necessary. And everything that was needed to be done in this instance was not done. And this was kind of an accident waiting to happen because the students were extremely out of control and there was no one there to gain control.

The next incident that I referenced is a primary school sexual abuse case. And in this case, the school system mistakenly determined that they could assign students both K-6 and 7-12 within the same confines and using the same facilities within a building. And this to me is a critical mistake. And one of the reasons why schools nationwide have elementary schools, primary schools, middle schools, and high schools is because most schools recognize the need to separate students into different age groups and treat them appropriately.

And in this particular instance, there was an emotionally disturbed child in the 10th grade, a 15-year-old child sharing a bathroom with kindergarten students on a daily basis, and that student inappropriately and unfortunately decided that these kindergartners would be easy prey and proceeded to abuse the students sexually. And, again, this is something that could have been avoided had the school system recognize the fact that you can't just simply let students share facilities of such a varying age group and of such a varying ability level.

This child who committed the act was an emotionally disturbed child. And he required, in accordance with his IEP, his individual educational plan, a post supervision. And he was not provided the supervision that was required in the IEP. So, there was a clear violation here of established procedure and this procedure or this requirement for proper supervision of emotionally disturbed students is both a federal and, I would say, I would eventually guess every single state requires that the IEP be followed at the administrators appropriately.

The next case I represent is the playground accidents. And in this particular instance, believe it or not, I've had about five incidents on the playground involving student injuries on monkey bars. And the main reason for that is that schools are not taking any precaution in equipping playgrounds with appropriate equipment for student's ages. So in each instance, a child fell a considerable distance from the height of the monkey bars to the ground and sustained serious permanent injuries. And this could easily have been avoided because it's not necessary to have a monkey bar available to a first or second grader or a kindergartner that's six and eight feet off the ground. It doesn't serve any purpose.

And what typically happens though is that schools don't try to make a distinction, and they leave themselves wide open for lawsuits such as this. So, the precaution here is that if you do look at a lot of school playgrounds, you will see age-appropriate equipment in the play areas of most school facilities. And unfortunately, it's something that a lot of schools simply do not address or do not pay attention to.

The last item on this slide is gymnasium accidents. And what I want to talk to you about is the need to establish standards. I have a particular incident that occurred, which pointed out something that's a glaring problem in today's schools. And that is that in most instances in gymnasiums, bleachers are typically set up and extend or come within two or three feet from the student play areas. And there have been numerous injuries where students have run into bleachers or fallen over bleachers or come in contact with bleachers for a variety of reasons.

But first and foremost is the fact that there doesn't seem to be any movement or attempt on the part of schools throughout the United States to correct this problem. So these are accidents which are absolutely waiting to happen in numerous locations. And I can't even try to understand why schools have not taken action to correct this obvious error and obvious, very dangerous situation.

Let's go on to the next slide. And I wanna talk to a little bit about facility maintenance and will go a little faster in this area. It would seem like why would any school district have to pay any close attention to things like doors and windows? Well, you'd be surprised at how many minor but permanent injury accidents I've had to address as a result of doors slamming and not being equipped with the proper hardware, and window location where windows are in such a place where it invites injury.

And it would appear that some of these very, what I considered to be simple things like maintaining well repaired doors and windows would be a no brainer for a lot of school administrators, but unfortunately it's not. And the key here is, from a legal point of view, there doesn't seem to be any established repair schedules or procedures in most schools to address faulty door jams and faulty windows.

So the students are constantly having finger and elbow and arm injuries as a result of this. And schools don't see that putting a little tiny bit of effort into maintaining those kinds of facilities are very important. The other thing I wanted to mention to you is that there appears to be a lot of what we consider to be outdated equipment, especially as a result of changing curriculum in schools throughout the United States. And one of the things that we rarely see in schools now are kilns for pottery manufacture or production in schools, but they are there. And typically, there are teachers who are trying to operate this equipment when it's clearly obsolete and it's clearly dangerous and shouldn't even be really present in today's classrooms.

And you'll see that kind of example of outdated equipment in most school shops, home economics classes, art classes, and physical education facilities. There's just the equipment that should have been repaired or actually should have been removed in some instances, because sometimes it's retired and it's there, but it's just waiting for an accident to occur with a child present.

The other thing I wanna talk to you about, which is a common thing that happens in schools, but it really needs to be addressed in terms of its implications, legal implications, and that is that a lot of schools for some strange reason rely on students to move equipment and to set up the equipment around the school. And that's a dangerous common practice. I've handled some very significant law cases, lawsuits involving injury to students who were expected to set up volleyball nets, set up and remove tables in cafeterias, set up and remove bleachers in gymnasiums, things that were clearly adult responsibilities that for some reason school administrators think they can delegate to...and school teachers think that they can delegate to students. And that's really an area that needs to be addressed.

There's clearly a lack of safety inspections with regard to facility maintenance in most schools. And if you're looking at trying to rationalize why a student was injured in a particular school incident, you're gonna find that there's very, very likely an absence of any safety inspections that occur on a regular basis in schools. It's just something that they have not gotten into the habit of doing, and they don't do it.

And, of course, something a little more obvious is chemical storage and disposal. And I can say to you that probably 50% of the time, chemical storage and disposal is handled incorrectly in schools. And, again, that's an area where lawsuits are just waiting to occur. And typically, it's a rare form of a lawsuit that I handle, but it definitely is there and happens.

Let's next slide. I want to talk to you about general supervision, some of the things that are going on in schools in terms of...and some rationale as to why they occur. And some of the things that you could look for if you're, in fact, either a defendant's or plaintiff's attorney in these issues. And one is peer sexual abuse. And let's be honest, peer sexual abuse is only going to occur when a line of sight, level of supervision is not maintained.

So, if you eliminate isolated areas, if you eliminate any areas in the schools where students can hide from the view of adults then you're very likely going to eliminate peer sexual abuse. And granted that some peer sexual abuse occurs in laboratories where we're not supposed to have a line of sight view of students. However, if a student is disabled or if a student is emotionally disturbed or has any kind of disability that makes you suspect of their either participating in by either agreeing to be or perpetrating the abuse, then there is rationale for having on-site, in-line in-site companionship or accompany students to the bathroom. So there are very clear reasons to maintain standard supervision in laboratories because, again, that's a common area where peer sexual abuse occurs. And if it's suspected then you need to take away that privilege of privacy that students have when they go to the bathroom.

The another area where there's a tremendous increase in the number of lawsuits recently is the area of bullying. And all of you, I'm sure aware of the consequences of bullying. We've seen some students at the college level and high school level commits suicide because they are being bullied. We've seen a tremendous increase in the emphasis on prevention, bullying prevention in schools. And I would say to you that most states actually require bullying prevention mandated education of staff.

I know that for a fact in New York and Connecticut, Massachusetts, New Jersey, there are requirements that teachers be attuned to discerning when bullying occurs, and that teachers, in fact, take very specific steps to assist students who they suspected are being bullied. And so never before until it was, in fact, mandated by law was there any consequence for teachers or for adult supervisors to turn their back on bullying. And now they actually have an obligation, a legal obligation to step in to take action. And that typically does not occur in most schools even though the mandates have been in place for several years.

One of the areas that I'm particularly familiar with is IEP conformance. And for those of you who are not aware, IEP is an Individualized Education Plan. It's required when a student is classified as disabled in any way in schools. And IEP conformance is an area that is absolutely right for a variety of lawsuits and it's constantly being abused by schools because schools set out very specific instructions on how to handle and how to address the needs of handicapped or disabled children.

And then they don't conform to the individualized educational plan that's in place. And the problem is that there is really no conformance enforcers other than the teachers themselves. So once the IEP is written and established and accepted by the parents in the school district, it's up to the teacher to make sure that the IEP is carried out. And there really needs to be, in my opinion, someone to look over the teacher's shoulder on occasion and see whether or not he or she is complying with the IEP. And in many instances, by the way, parents are the best watchdogs in terms of making sure that their children are receiving the services. But unfortunately, I would say to you realistically, 75% of the parents do not look at the IEP and try to see whether or not their child is, in fact, getting what the school district has said they would do.

The next one is failure to supervise staff. What I wanna say about that is that there just really seems to still be in American education a prevalence of incompetent teachers. When I say a prevalence, I mean, probably 8% to 10% at least, I would like to wish that it was less, but unfortunately, I think it's probably more than that. But I would say to you, 8 or 10 out of every 100 teachers are downright incompetent, they just can't teach. And we don't have any real good machinery to solve that because we fail to supervise staff properly. Teachers and teacher unions are extremely reluctant to undergo any kind of evaluation, formal evaluation. And it's always been something that they've taking exception too, because they don't feel it's being done fairly.

And they're probably right in many instances because supervisory staff, typically principals, assistant principals are not trained well in teacher evaluation. It's not something that happens at the undergraduate level. So that's a real basis for a lot of lawsuits from my perspective. And, you know, in a lot of instances, in the cases that I get involved with as an expert witness, there's a lot of failure of supervising staff properly. Whether it's the principal supervising the teacher or the superintendent supervising the principals or whatever, there always seems to be a prevalence of poor evaluation systems in place.

Another thing I want to mention to you and I think we're almost ready for a break, but I'm just gonna...let me finish this slide. And that is that timely action taken. What I mean by that is, in most cases that I get involved in the administration is very, very lax in taking timely action subsequent to an incident occurring. So reports are not filed, reports are not filled out properly. The specifics of relating what occurred in a particular incident where a lawsuit may be an issue are vaguely recalled, are poorly recalled, are not entered properly into the records. And school administrators and teachers typically leave themselves wide open in this area in terms of reason for lawsuits, because they don't keep proper records, and they don't have any explanation for why they can't recall or why they can't justify what action they took after subsequent to an incident.

Next slide, do you wanna break here? Brooke, you were gonna ask them to submit questions.

Brooke: Sure. We do have two questions. One is from Yvonne, she asks, "Doesn't it set the school district up for an increase in suits to have a set schedule for maintenance or inspection, especially if the same district won't always have the money to do every repair?"

Dr. Monk: Read that back to me once more because I think everyone else wants to hear it too. I'll answer it right away, go on.

Brooke: Okay. "Doesn't it set the school district up for an increase in suits to have a set schedule for maintenance or inspection, especially if the same district won't always have the money to do every repair?"

Dr. Monk: THe answer to that question, unfortunately, the answer is yes. So that if you do get to a point where you're going to have inspections, you better be ready to comply with whatever findings you have and have the money to do it. And she's got a very good point. I had a very, very significant case from...a kid actually had his hand completely crushed in a door and this is, you know, going back to the door jam topic. And the door in itself snatching a child's hand and complete, permanent injury to the hand, completely mangled the hand was serious, but the reason for the lawsuit being so significantly...there was a very, very large settlement in that case because it was proven that the door had been broken for six months.

And on numerous occasions, the maintenance staff had requested the money to make the repair but the school administrator said, "We don't have the money, so let's just live with it and prop the door open." So, there was clear indication that this was negligence because it was a foreseeable and avoidable accident. So in answer to her question, yes, if you're not willing to commit the resources to comply with the findings of inspections, then you better be careful about what you do because you are, in fact, creating a record for the plaintiff in this case that you knew about something that was in disrepair and you didn't comply. So a good question. Next.

Brooke: Sure. Our next question is from Robert. Robert asked, "What waiver of immunity is there in Texas other than automobile?"

Dr. Monk: What waiver...I didn't hear that little part, what waiver of immunity in...?

Brooke: Is there in Texas other than automobile?

Dr. Monk: In Texas?

Brooke: That's what it says.

Dr. Monk: Yeah. Well, unfortunately, I have no idea what the specific state laws with regard to education are in Texas. I'm not sure what he's implying with regard to what as it relates to schools?

Brooke: Okay. Well, I'll have him resubmit if he has a...

Dr. Monk: He needs to have that question clarified a little bit. Any more questions?

Brooke: We have one more. What are one or two of the biggest things plaintiff's attorneys do wrong at trial?

Dr. Monk: And this is gonna sound extremely self-serving but it's from experience so you got to take it with a grain of salt. Failure to get an expert witness involved early on because I find that many attorneys are not familiar with school procedures and school regulations and laws. And many attorneys typically call on me late in the process only because maybe they had an expert witness exchange with the closing attorney. And I say to them, "Did you ask for this? Did you ask for that? Did you depose him? Did you depose her? Did you look at this? Did you look at that in the school system?" And they'll say, "Oh, we're finished with discovery. We can't ask for anything else. We just need you to write a report based on all the information that we gathered."

And I'll be very honest with them and say, "Hey, look, you really should have asked for the rules of conduct. You really should have asked for...you should have deposed the school security officer. You should have deposed the aide that was in the classroom, not just the teacher." So there's a lot of...I think in answer to that question, the way I can answer that best is, typically the plaintiff's attorneys do not try to see the whole thing from start to finish when they begin the case. And they overlook some things that they could have delved into and present an incomplete case because they don't have enough information to convince a jury and/or a judge that the position of the plaintiff should be upheld. So I think it's the failure to prepare properly and to gather enough information to present your case. Okay.

Brooke: Okay, that's it. We can continue on with the presentation. Just let me know when you're raising the next slide.

Dr. Monk: Okay. I think it's Failure To Post and Inform.

Brooke: Yeah, that's what we got up.

Dr. Monk: Okay. I could go a little faster here because I'm going a little bit too slow here in terms of my hour. But you're not gonna miss too much because what I can do is I can really group a lot of these...this slide into some general conclusions. Because, typically, schools for some reason don't see the value in posting rules. And time and time again, in cases that I've been involved in where the plaintiff's attorney points out that there was no clear direction for the students or the staff, or the defendant's attorney clearly points out that there were, in fact, cafeteria rules posted, or there were, in fact, the playground rules posted so that the students should have avoided that injury or that incident should have been avoided had the student and/or the staff conformed to the rules posted.

And I was going to give you some very specific examples of this, but just as a starter here, I'll talk to you about a couple of cases that have to do with some of these failure to post. And the one that I can think of very specifically is there was a case in New Jersey where the playground rules were posted all over the place and everywhere you looked, there were rules that this particular piece of equipment can only be used by kindergarten and first graders. And this particular piece of equipment is only available to second graders and third graders. And they, in fact, had an injury occur on the playground. And what happened was one of the teachers went and took the class and had them utilize the wrong piece of the equipment. And the posting of the rules actually worked against the school district because the teacher failed to establish...failed to follow the rules that were posted. And then, in fact, a child was hurt because he or she was on it...and this particular incident was a she, she was on an inappropriate piece of equipment and she was injured.

So not only post the rules but discuss the rules with staff, very, very critical. And, again, from lawyer's perspective, even though the rules were posted, did in fact the school administration make certain that the rules were complied with? What did they do? Did they read the rules to the teachers at the beginning of the year? Did they share those rules with the teachers while they toured the playground and they toured the cafeteria where they walked through the gymnasium with the teachers or with the students? Did the teacher in the gymnasium go over the rules that are posted with the kids in his or her class?

And as a confirmation of my feelings about this, if you've ever walked into a classroom and you've seen classroom rules of courtesy and respect and so on posted all over the place, staring kids in the face all day, I would bet you that you do see a heightened awareness and increase in good behavior and good habits, and you see a better classroom atmosphere when you do, in fact, see classroom rules posted. Because teachers typically who do that place a heavy reliance on relying on those rules. And, again, it rules of all sorts. I mean rules for going to the bathroom, rules for sharpening your pencil. From my perspective, in terms of my experience as a school superintendent, as a school teacher, if you don't have rules, you have chaos because it's not easy to control 24 to 30 kids in a classroom if all of them don't have a fairly clear understanding of what they're supposed to do. And that goes for hallways, gymnasiums, cafeterias, and playgrounds also.

Now we'll go into the next slide. I wanna talk to you now about the assignment of staff and what I think goes wrong and what I think you can look for regardless of whether or not you're on one side or the other of a lawsuit. One thing is that even though security is present in a lot of schools, there's a very unclear statement of assignments for security personnel. And a perfect example of this, by the way, and I won't name the schools but I'll name the areas that there's an urban school district in Connecticut that has 42 security guards in the high school every day. And there's a huge problem in terms of maintaining order.

And there is typically in a lot of suburban high schools, there's one or two security guards assigned to the buildings and there's a tremendous amount of order as a result. Why? And I'll tell you, I looked at this very carefully in the urban Connecticut school, and it was very clear that the security guards had no idea where they were supposed to be, could care less whether or not they hung out in groups of 10 and 12 in the same area, and left most of the building unsupervised and unprotected. And because there was such a presence of security guards, 42 in the building, the students felt like they were really accomplishing something when they got away with something or when they pulled something off because they did it under the noses of so many security guards.

So without a clear definition of what people are supposed to be doing in school, and it gets back to my general topic of this slide, the assignment of staff, when there's no clear responsibilities for doing something, then simply nothing's gonna be done. And believe me, students, it's a natural, normal, built-in thing, when students feel that they're not being watched and that they're not going to be disciplined, many of them will try to do something that is questionable because they realize that it's very unlikely there will be any consequences for their actions.

So I wanna talk about each one of these just briefly. Unattended classrooms, you'd be surprised as how many lawsuits occur as a result of nobody being in the classroom. And that's not a difficult thing to get at when you seek information from student witnesses and when you seek information from fellow teachers. So if you do a lot of investigative homework into a situation when you're an attorney, you can usually find out that reason something happened is because no adult was around. And I've had numerous incidents where there was no one in the classroom, the teacher went down to get a soda or the aide went to get lunch and was only gonna be gone five minutes. And during that short period of time, you know, somebody was injured or something happened which resulted in a lawsuit.

The other thing is, it's fairly prevalent in American education and I'm not quite sure what to do about it, but obviously, there's some steps needs to be taken, aides are typically very poorly trained. We just have people who are working as teacher assistants, who are given little or no direction, and I don't think the teachers feel it's their responsibility. I don't think the administration feels that they have the time to carry out any training. And I very, very rarely see some good formal training for teacher aides. And, again, it's a good reason why a lot of things occur in schools that result in a lot of legal problems for schools.

Irregular maintenance, that's kind of repetitive in terms of what the question was to me that was posed earlier that I attempted to answer. And that is, yeah, when you have your regular maintenance, you've got a problem. And that's, honestly, a result of typically poor custodial management. And, again, it gets back to assignment of staff. Head custodians are rarely trained how to be head custodians. And maintenance people are rarely trained on how to be a maintenance manager. They learn on the job, they make a lot of mistakes, which leaves a lot of leeway for problems. And we really should have a more formal way of preparing maintenance staff for their jobs.

And a typical prevalence throughout schools is the administrative lack of accountability. To be honest with you, I'll talk to you from our perspective of a former principal and as a former superintendent. It's not fun to do evaluations, it's not fun to confront people that are not doing their jobs. It's very difficult to carry out a dismissal proceeding against a staff member. It's very difficult to criticize somebody who is clearly incompetent but who maybe have been around longer than you in terms of as an employee of the district. So, administrators, there is a serious lack of accountability on the part of administrators. In most settings probably because administrators just don't like that part of their job, they'd rather do other things. I'm not sure what the cure for that is.

Talk quickly about...looks like we have about 11 minutes left. Talk quickly about records oversight. So this is something that will be helpful to you as attorneys. Very rarely are there proper background career checks on employees. So one of the very first things that you should look into is where the proper background career checks and background checks for the employees that are involved in any lawsuit. And typically, you'll find some personnel record oversights, which can point to a lot of things that could be a real problem.

The other thing is, along with that, law enforcement background checks. I mean, those are mandated in most states, but they've done very poorly. And they've done by organizations that don't carry out the background checks very efficiently. So a lot of people that, you know, get by without getting caught up. And there was a great example of that on Long Island, New York where a bus driver was hired and he was a former sexual abuser. He was then in prison a year before that as a sexual abuser. He didn't put it down in his application and nobody caught it, because don't ask me why. It just wasn't done and he went on, by the way, to abuse busload full of kindergarten students, and it was a major lawsuit about 10 years ago on Long Island. And really, it drove home the importance of law enforcement background checks.

Again, coupled with that is verifying college job experience. You can't even begin to believe how many people in education exaggerate their college and job experience and don't reflect it accurately in their application. So there's something that you could definitely...it's an avenue that really needs to be pursued when you have somebody who's questionable who's involved in lawsuit.

Meaningful reference checks, from my perspective, that's before the fact, schools should really do meaningful reference checks, they really typically don't. So they do end up hiring a lot of people who have very questionable backgrounds to work with kids. And that really could be overcome by getting valid references from former employees, not references from friends or references from someone's priest, but references from someone who this person has worked for and been accountable to.

And then I have something that's rarely done, but actually I did it as a superintendent because I really felt it was very important, and that is on the job observation before hiring. We require teachers to teach a whole day before we even consider hiring them because we really wanted to see what their interaction was with kids. And it was a pain in the neck to carry that out because it was cumbersome. But it paid off in the long run, we really felt like we were making much fewer mistakes. Because people can interview in a very, very wonderful way, but then when it comes down to get going into the classroom and actually doing the teaching, they fall short.

Eight minutes left. Let's go to the next slide. We are at questions, okay, good. Right, so anymore slides, anymore...oh, I'm sorry, that was just a break for Q&A. Okay, let's try...

Brooke: I think you have 18 slides so you just let me know what you'd like.

Dr. Monk: How many do I have left? I think I have five left.

Brooke: You have five left, yeah.

Dr. Monk: And I'm gonna go quickly because we wanna leave...by the way, how many questions do we have?

Brooke: You have about three.

Dr. Monk: Let's do 'em. Let's do the questions. I really want to get to the audience. I'll do the questions and then I'll do as many slides as I can.

Brooke: Okay, and it's also all right if you run a little bit over the hour. Okay, we do have a question, "What happens in a case where the local municipality provides an officer to the school on a full-time basis? Does liability for that officer's actions while at the school shift to the police department or the school?"

Dr. Monk: That is a good question, and that is something that happens on a regular basis. In New York State, most of the time counties hire the security guards and put them in the schools. In New York City, the New York City Police Department places the security guards in the schools. And they are, in fact, New York City and New York Board of Education employees. The answer to your question is both of them are responsible. You could you find liability or responsibility on the part of both. Because they're in the schools, it's the school that takes the primary responsibility. But there's no doubt in my mind that in New York City, if a school security guard has a problem or is negligent that one can point to both the City of New York and the City Board of Education.

So in answer to your question, again, it would depend on exactly what the relationship is. In New York State where the county hires them, the county gives the money to the school district to pay for the guard. So the school district is definitely responsible even though the funding for the position comes from the county. The county gives the money to the school and the school, in turn, pays the guard. So that relieves the county of responsibility. So I guess if you have to give any advice to municipalities, I would say to you, have them turn the money over to the school. In fact, the school wants the security force, have them turn the money over to the school, have the school, in turn, become the employer, okay? Next?

Brooke: Okay, the next question is, "As an expert, what do you consider your primary role when testifying in court?"

Dr. Monk: Number one, no doubt about it, looking at the jury and convincing the jury that whatever position I'm taking is the correct position. So face-to-face contact, actually trying to face-to-face engage each juror and convince the jury that the position I'm taking is, number one, correct, number two, fair, number three, reasonable. And no doubt in my mind that that's my primary role when I get on the stand is to engage myself with a jury because the jury is gonna be the one that makes up their mind. And that's worked very, very successfully for me. I've been, honestly, very, very pleasantly surprised on numerous occasions when a jury decision comes out. They typically will say, they've actually commented that the expert witness was the one who helped to convince us that we need to do this or we need to do that. So that's my number one role, okay? Next?

Brooke: Okay, we have one more question, "Does your job as an IBEA state hearing officer ever conflict with your role as an expert?"

Dr. Monk: I do not try to...here's how it's separated, by the way. I am an expert 90% of the time in out of state cases and in New York City. I'm a hearing officer only out of New York City and the rest of the state. So my jurisdiction as the hearing officer in New York is in 24 of the 52 counties, excluding New York City. So I don't come into conflict with being an expert in cases. There have been some requests on the part of attorneys to have me become involved as an expert witness in schools in New York State. And I've been very careful to make that known that I'm a hearing officer but it shouldn't affect...you know, it can't really affect my judgment in the case that doesn't have anything to do with disabled kids. So sometimes it's a little tricky, but as a general rule, it's not a problem for me because I've made the distinction in terms of way I serve. New York City has an expert, other states as an expert, and New York State selected counties as a hearing officer. Anything else?

Brooke: No. That's it for the questions.

Dr. Monk: We're at 2:58. Let me just....by the way, can I back up...yeah, can I back up these slides. I just wanna see, I don't think we're going to...I just talked more about bullying.

Brooke: Would you like me to go to the very beginning?

Dr. Monk: No. I'm looking at...why am I going backwards now? I wanna go forward.

Brooke: Okay.

Dr. Monk: By the way, you're controlling, I thought I was. So look for 14.

Brooke: Okay.

Dr. Monk: I wanna talk to you very quickly about what the alternatives are for perpetrators of crimes and let you know that I really think that most of the time, schools are much too soft on the offenders or the perpetrators of injuries. And it's very rare that a child will be expelled from school and expelled, in a legal sense, by the way, means that the child is sent out of the school system and is never to return. And that almost never happens in New York State.

And it's almost impossible, by the way, for it to happen if the child is disabled because you're supposed to be able to save every disabled child, but you're not necessarily supposed to be able to save every non-disabled child. But expulsion is an option and schools just don't rely on it enough. Very rarely the schools report criminal behavior to police, and there's no explanation for that. So if you're the plaintiff's attorney, one of the first things we wanna ask is, here's a kid who beat up 15 different kids and finally really severely injured my client. And why wasn't he reported to the police? The schools are extremely reluctant to report criminal behavior to the authorities. So I think it doesn't sit at all well with juries. When you can convince a jury that here's a kid who should have been removed long ago, and he or she perpetrating the crime, and never was reported to the authorities.

The other thing, this is an extreme measure but rarely used, which should be contemplated more often by schools, is residential placement. Take the kid out of the public school and put him in a residential treatment center that handles the student's disabilities or needs are rarely and reluctantly done because it's expensive and expensive is not a good reason not to do it. And finally, the other thing is there's laws you need to check because there are laws in each state on the use of restraints. And you find that your client or that the perpetrator was not given proper restraint, it could be a violation of law. And not too many people realize now that a lot of schools are doing that.

Next slide. Next slide. Okay. Again, this is kind of self-explanatory and am I correct in saying that they'll all get copies of these slides? Brooke?

Brooke: Yes, they do. They get a link that we will email out tomorrow, so we don't have to put an attachment in their email and hold up their email. I will put a link...

Dr. Monk: So just look at this slide, this Resources to Consider because it's fairly self-explanatory. I was going to go into a little bit but we don't need to. What's the next slide? This is very good, very good information for you. As attorneys, what I'm finding is that any permanent injury, any significant permanent injury settlement is usually between $300,000 and $500,000 now in today's market, and even a minimal permanent injury settlement is $150,000. So schools and school attorneys and school law firms are typically ready to settle any injury that's permanent that we're aware supervision is a law in question. And that seems to be the determining factor.

If it's not a permanent injury, I say this, almost all school litigation claims will result in parental animosity towards school personnel who fail to act reasonably. And that's true. If you handle...if a school district handles it correctly when a child is injured and didn't antagonize a parent or treat a parent in a way that the parent feels is unfair, then the parent is much less likely to litigate. And schools don't see that, yeah, they don't get it. So, somehow, from my perspective, schools typically antagonize parents as soon as the parents confront the school about any kind of student injury.

Next slide. I think it's Q&A, yeah. Okay, so we're at Q&A. So, in wrapping this up, I would say to you that it's definitely a value to you to make some careful preparation, whether you're a defendant or a plaintiff, to carefully consider who you're going to depose in a case and what information you're going to seek in discovery. That's critical. And I would say also that you need to pay particular attention, and we didn't touch on this but I'll just say this and hopefully it's helpful to you, I would avoid calling witnesses who you're fairly certain will not do you any good in front of a jury. I've seen far too many witnesses called who hurt the plaintiff's case or the defendant's case and they're called by the defendant or the plaintiff.

So in, other words, the idea that you didn't really understand or perceive how weak or how damaging your own witness could be in a case. And that's pretty disturbing, it's something that is definitely avoidable, and it's something that I would definitely recommend to you, be very careful about what witnesses you call and what questions you ask them. So that's it. Thank you very, very much. I appreciate it. Hopefully, we've been of some help to you. And I look forward to talking to some of you. If you want to email me, feel free to do that. I'm sure my email will be provided to you, if not, maybe Brooke could do that. And thank you very much for coming today.

Brooke: Thank you. This brings our webinar to conclusion. I'd like to thank everyone for their participating today. We'd also like to thank Dr. Monk for his time and helpful presentation. Just to note, this webinar is eligible for CLE credit in Illinois, New Jersey, Missouri, Minnesota, and Texas. And to ensure that you receive your CLE credits, please complete the survey that comes up at the end of the presentation. In addition to TASA being your source for testifying and consulting experts, we also offer e-discovery solutions, our free interactive webinars, and research reports on expert witnesses.

And once again, we thank you for your time. Tomorrow morning, we will be sending out a link with an archived recording of this presentation, and also a link to the PowerPoint presentation that was used today. If you have any questions, please feel free to email Carol Kowalewski at the email provided. And once again, tomorrow you'll receive a follow-up email with Dr. Monk's information. And if you have any questions, feel free to contact TASA. Thank you and have a great day.