The Ten Commandments
For Dealing With Legal Claims

Try as we may to avoid getting involved in a lawsuit, litigation is a part of the world we live in and it's not going to go away. The fact that your charitable organization can be sued should be taken very seriously because so much is at stake: your good name, financial resources, future Board Members, and other volunteers. You should also recognize that you can learn from each claim by understanding the issue and working to improve a procedure or process and spotting patterns that could lead to a legal claim.

Foster Robberson, an attorney with the law firm of Lewis & Roca in Phoenix, offers the following Ten Commandments For Dealing With Legal Claims:

I. Thou shalt recognize a potential legal claim as early as possible.

People who are in operational, or non-legal positions, should be aware that there are certain legally suspicious calls. These could include a call from an outside lawyer or a risk management person or it could be from someone who you routinely work with, but the call is about a non-routine matter. Anything that smacks of legal issues should be considered suspicious.

II. Thou shalt not try to play the role of the company lawyer.

Get legal advise right away so you don't compromise matters by making legal judgments.

Don't take it upon yourself to go two or three steps down the road before you decide this is indeed a legal issue.

III. Thou shalt not make promises to a potential claimant.

If someone calls because they have a problem, the non-attorney should not be saying "we won't object to that, or we'll be able to compromise on that, or we'll be able to extend those terms." Don't make those judgments because those are legal judgments.

IV. Thou shalt not make conclusions about causation or admit liability.

If you've had a fender-bender on the way to work, you don't want to get out of your car and walk over to the person you just hit and say, "My goodness, I'm so sorry, it was all my fault." You need to be a little sharper than that. When you're in the position of having the legal call made to you, and you're a non-lawyer, you should be an active listener. You should be obtaining information for the purpose of taking it to your legal people. You should not be making conclusions about causation or liability.

V. Thou shalt document.

People ought to document consistent with their organization's SOP's. Document the facts, not your explanations or qualifications. Document what you saw, heard, read, and did, but don't go into conclusions or "knee-jerk" defensiveness that might make one part of the organization look good at the expense of another part of the organization. These cases are not about justifying any particular employees conduct, they are about justifying the whole organization. You're not helping your organization if you help your own department by dumping all over your neighbor.

VI. Thou shalt centralize contacts with any potential claimant.

You don't want everybody in the organization talking with this person or this person's lawyer. You need to set up clear lines of whose going to talk to whom. You need centralized control, generally this is the lawyer or someone he designates.

VII. Thou shalt not give out information without legal department approval.

In a routine situation you might send out information without worrying about legal ramifications. However, if a request for information has crossed over into the non-routine situation, and it starts to smack of legal problems, then you should get your legal department involved.

VIII. Thou shalt be aware of confidential relationships and confidential situations.

There are times when information is confidential, especially in a medical context. For example, it's absolutely taboo for a medical company or medical organization to identify patients or donors. When you're looking at a non-medical context, most lawyers are concerned about proprietary information. They would not want customer names identified, suppliers, financial agreements, or other confidential facts.

IX. Thou shalt not talk to the opposing lawyer about a legal claim except to refer him or her to the legal department.

If you get a call from a lawyer -- bells, whistles, and cannons ought to go off, because this is not a routine situation. Refer the lawyer to your legal council.

X. Thou shalt not talk to the press about a legal claim except to refer them to the legal department.

The legal department should be involved in establishing avenues of communications. You may decide in your organizational strategy that the press contact person is somebody other than the lawyer, and that's okay. The real vice you want to avoid is having multiple people talking to the press because you get into conflicting situations and you can get into the situation where the press plays one spokesperson off another. Your organization should be sufficiently under control so you know who is making the comments and what they're saying.

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