Are You Giving Legal Advice or Legal Conclusions?

There is nothing worse than the following training scenario:  Q: “If someone does X, Y, and Z, would that be harassment?” A: “Yes, of course it would.”   Problem:  If X, Y, and Z are actually happening (and sometimes they are, and that’s why the question was asked) you have just made a legal conclusion.   If the organization is sued for the X, Y, and Z that happened, you may be bound by your (damning) conclusion that this conduct violated the law.   In fact, those conclusions are only for judges and juries to make.  

Correct answer without falling into a pothole:  “I can’t say whether or not that conduct violates the law.  Only a judge or jury can draw those legal conclusions.  However, it does/may/can violate our policy and that is what we are focused on today.” 

Never give legal advice is the other part of this rule.  If you are a lawyer, training is not the place to be dispensing legal advice.  There will be no attorney-client privilege that attaches, particularly since you will want to be able to use the training as evidence of your affirmative defense.

From Case Dismissed!  Taking Your Harassment Prevention Training to Trial, Second Edition
ABA Section of State and Local Government Law and the ABA Tort Trial & Insurance Practice Section
By Carol M. Merchasin, Mindy H. Chapman, and Jeff Polisky

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