In this calm before the storm, I decided to vent at that one group of people we all love to disparage - lawyers. Specifically our lawyers. I'm not going to rant about how much I hate lawyers, because I actually don't hate them, but sometime they frustrate the hell out of me. Tell me if this scenario sounds familiar.
You've done an inspection, you and your AD agree to 8 Serious and 4 OTS, total penalty $15k. You have video of the employees using unguarded machines, working from heights without fall protection, and a video taped confession from the plant manager admitting that they don't have a LO/TO program. It is as straight forward as any inspection can be. The company comes in and won't agree to the informal settlement. That's OK, the company is exercising it's rights, it's an inconvenience, but not a problem.
You send the case file up to the RSOL and wait. Three months later you hear back, the case has been settled: 1 Serious and 2 OTS, total penalty $1250.
Now comes the fun part, the postmortem, what happened to your case? You get permission to directly call the attorney handling the case. Here's how that conversation goes:
"Why?" you ask incredulously.
"We didn't have enough evidence."
"What was missing?" you ask, wondering if this attorney was using the royal We, because they sure as hell were part of the inspection.
"It just wasn't complete enough."
"But what else did I need to do?"
"No, you did a fine job, but a judge is going to look at the totality of the case."
"What does that mean and what could I have done to complete the case?"
"I'm not sure there was more you could do, it just wasn't a strong case."
It's at that point you have an epiphany, and the rationale for keeping attorneys in the RO instead of the AO suddenly makes perfect sense.
For those not in the agency, I just want to point out that most of us don't deal with our attorneys very often, so this isn't an everyday occurrence. It's also important to understand that not all attorneys are the same, I once had an attorney who was ready to go to trial over 3 OTS, but the case was settled the day before the trial.
What I would beg of any attorney is quite simple:
- If I miss something tell me. You won't hurt my feelings, I'm more concerned with getting the employer to correct the problems than I am inter-agency politics.
- If you tell me I'm missing something, don't forget to tell me why it's important that I have it next time.
- Be consistent. It seems like in one case you'll say "Oh, you don't have this, and we need it to go to trial." And then on the next case I have it and you say "Oh, that's not important, you need this instead," even though it was never mentioned in the previous case.
- I get that judges have different perceptions of what preponderance of evidence means, but a video makes things pretty clear.
- I'm a big kid, lawyers don't scare me. Let the opposing attorney come at me, I'll nail his ass to the wall just like I did the plant manager's.
It occurs to me that the biggest thing we lack is conversation between attorneys and CSHOs. Occasionally we'll have an attorney lecture us, but that doesn't work very well, we need to talk, to have actual conversations from one professional to another.