Dr. Richard P. Borkowski

Richard P. Borkowski, EdD, CMAA, is a sport safety consultant based in Narberth, Pa. The former Director of Physical Education and Athletics at the Episcopal Academy in Merion, Pa., his most recent book is titled Coaching for Safety, A Risk Management Handbook for High School Coaches, published by ESD112.

If you've read some of my previous articles for this magazine, you know the importance of doing everything you can to reduce risks. You know how to make safety a priority and properly supervise. You know how to spot hazards and insufficient buffer zones, and you know the importance of reviewing your emergency plan.

What you probably don't know is what to do when, despite all your risk-management procedures, you find yourself in court. Even with the best planning and education in place, any athletic department can still be sued.

I don't wish the ordeal of being a defendant on anyone. But if it does happen, this article will get you prepared. It will also convince you of the importance of avoiding the courtroom in the first place.

A LAWYER'S GAME
For many years, two New Jersey track and field coaches volunteered to run a community track meet for middle school students. One year, a student fractured his ankle in the long jump and sued because the landing pit was allegedly unsafe. Two years later, the defense demonstrated with photos and witnesses that the pit was safe and the coaches were exonerated.

When the trial ended, the plaintiff's lawyer turned to the coaches and said "nothing personal," which almost resulted in an altercation. And who could blame the coaches? Their lives had been turned upside down, and they never dared to hold another community track meet. But, for the lawyer, it was just another day in court.

We live in a litigious society. There are more lawyers, and the contingency fee system makes it easy to sue. Therefore, know that if an athlete or parent wants to sue you, there will most likely be a lawyer willing to take the case. And no one in the legal system will care that you have dedicated your life to kids and would never do anything to harm them.

There will be lawyers trying to win at their game, a judge who serves as referee, and a jury of "peers" who probably don't know anything about the realities of coaching and athletic administration. You will be attempting to win a contest with unfamiliar rules.

HOW IT WORKS
The first thing that will help you through a lawsuit is understanding its process. You will most likely be appointed a lawyer by your school district. He or she will be your coach through the process, and you will need to trust your lawyer to call the plays.

You'll spend a significant amount of time with your attorney and be asked a number of detailed questions, which at times may make it seem as if he or she is on the other side. But that's how it works. The lawyer is trying to help you and the school prepare for your opponent.

Lawsuits take a long time and move slowly. Before you set foot in a courtroom, there is a period of time called "discovery." This is when both attorneys collect as much information as possible about the other side. Questions are asked and documents are requested.

The last part of collecting information is usually the deposition phase. These are oral examinations, given under oath in an imposing conference room. You and other witnesses will be questioned about the incident by the other side's attorney.

Nine out of 10 cases are settled sometime after the deposition phase and before a verdict is reached. There is no court decision, money changes hands, and everyone goes home. This outcome can be difficult to swallow. Why give someone money if you are not at fault? The reason is economics--it is often cheaper to settle a case than to conduct a trial.

YOUR ROLE
Along with following your lawyer's instructions, your role is to gather information and remain strong throughout the ordeal. It's easy to become angry and disillusioned with the process, but it's critical that you don't show these emotions in public. You want to come across as confident about your abilities and the decisions you made.

The first thing your lawyer will ask you to do is review the situation. What happened and why? You'll also need to gather whatever information you can related to the incident. This may include practice plans, equipment, a photo of the site, and names of possible witnesses.

The major question the case will examine is: Did you meet your duty of care toward those under your supervision? Duty of care is an obligation recognized by law, which requires an individual or a group to conform to a particular standard of conduct.

More specifically, did you do everything reasonable to lower the chance of injury? Can you show how? Was the situation supervised adequately? Were participants prepared for the activity? If the injury was during a game, was it competently officiated and was an injury-response plan in place?

Hopefully, your lawyer will also ask you about your background, your education, and what type of preparation you do as an athletic director. This is how to show you are a competent professional who has thought about potential risks and put rules in place to keep athletes as safe as possible.

Until the deposition phase, you will be providing this information to your lawyer, but no one else. A key point is: Do not discuss the case with anyone other than your attorney. Also important is to not contact those suing you.

IN COURT
If your case proceeds to court, prepare yourself well. You will be the star witness, and it is not fun. Here are some tips:

• Review all information. Tell your story in your own words. You are not expected to remember every little detail.
• Listen carefully to all the questions from both lawyers. Answer in as few words as possible, and don't embellish. Take your time. Give only the facts.
• Dress like a professional. Be polite at all times and never lose your temper, even if a lawyer acts unprofessionally.
• Bring to court only the materials suggested by your attorney.
• It's alright to be a bit nervous--the jury will expect that. Sit up straight, look people in the eye, and speak clearly. Remember, you are the expert.
• If you don't understand the question, ask to have it repeated until you understand it completely.
• If you make a mistake, let your lawyer know and try to correct it.
• Take your time if asked to read something.
• Whenever possible, give definitive answers. Avoid saying "I think," or "in my opinion."
• Demonstrate that you care about the young people you work with.
• Understand that while one side wants to make you look like a caring professional, the other will attempt to discredit you.

TELL THE TRUTH
My last point is simple, but warrants its own section: Always tell the truth.

IT CAN HAPPEN
Having 35 years of experience visiting courtrooms as an expert witness, as well as being a former coach and athletic administrator, the best advice I can give is to avoid the "It'll never happen to me!" attitude. It can happen to you. It's happened to thousands of coaches and athletic administrators.

I have seen countless coaches leave the profession after going through a lawsuit, even if they've won. They talk about the deterioration of professional relationships, sleepless nights, and the looks received from parents and students.

And I'll close with this thought: Do not blame the lawyers. Lawyers may come off as the bad guys, but they are only doing their jobs. It takes people to sue people. In fact, lawyers have made one major contribution to athletics: They have required schools to review, improve, and be more sensitive to safety. That's a good thing.