When an organization experiences a loss or near-miss, its safety professionals and lawyers often disagree on the proper approach to investigation and report writing. This tension results from 1) perceived antagonism in the goals each profession strives to accomplish; 2) misunderstandings about the meaning of words commonly used by both; and 3) unfamiliarity with tools available to help both meet the organization's needs.
Among the safety professional's foremost objectives is the prevention of future losses through thorough investigation of accidents. Competent accident investigation [hereafter "AI"] requires a) probing for all relevant facts; b) analyzing the facts to discern underlying basic or root causes; c) recommending appropriate remedial actions; and d) documenting accurate and complete findings to promote information sharing and to ensure follow-up. The lawyer's primary objective is to help the organization conduct its affairs so as to avert undue legal responsibility. Philosophically speaking, the two professions strive diligently to attain the same goal: helping the organization to avoid loss. The perceived conflict emerges when they differ on the best method to reach that goal.
When the organization's personnel conduct effective AI, they are likely to uncover facts and draw conclusions about accident causation that reflect unfavorably upon the organization. This is to be expected, since accidents usually occur when the organization's safety systems do not adequately control the risk exposures that lead to accidents. If the organization's personnel search out and document those failures in the interest of prevention of future similar events, lawyers fear that parties outside the organization might use those findings against the organization in litigation involving the accident in question or in litigation involving similar occurrences.
What lawyers fear is the specter of "discovery." Once a lawsuit has been filed, the parties to it are entitled to engage in discovery, during which they obtain factual information about the case from each other to prepare for trial. "Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation."1 Discovery methods include taking depositions of witnesses, requesting other parties to answer written questions and produce documents or things, and transmitting "requests for admission."2 Loosely defined, an "admission" is a written or verbal statement by a party or its agent or employee that might tend to hurt that party's position.3 Discovery furthers the free flow of information and avoids "trial by ambush." Lawyers fear that their organizations will invest substantial resources in diligent investigation and documentation of accidents to advance well-conceived safety improvements only to create "smoking guns" in AI reports that can later be used against them.4 Many lawyers deem it a wiser course to limit the scope of investigations or to discourage investigators from recording their conclusions about the inadequacy of the organization's controls, despite the impairment to effective remedial action and information sharing within the organization imposed by such limitations.
