Warning: training cuts can be hazardous to your financial health.

• Author: Galvin, Mary M.

THE PROBLEM: Many offices are facing very difficult budgeting decisions as the nation reels in financial crisis. Unfortunately, some office managers are choosing to make cuts in their training budgets. While this may appear to be an easy way to gain some budget space now, it may turn out to be a very costly solution. Recent legal developments require reexamination of the old attitude that "Training is the first thing to go"

On December 19, 2008, the United States Court of Appeals for the Fifth Circuit upheld a $14 million judgment against the New Orleans District Attorney's Office in Thompson v. Connick et al., --F.3d--, 2008 WL 5265197 (5th Cir. 2008). The cause of action in this very costly case was failure to train, monitor, and supervise prosecutors in the district attorney's office on Brady issues. With the addition of attorneys' fees of $1,031,841.79, expert fees of $90,916.61, and costs of $43,419.05, the actual amount exceeded $15 million.

The jury returning the verdict found that there was not adequate training on Brady issues. The jury reached this conclusion even though there was testimony that the office "... provided adequate training in the form of on-the-job training, Saturday training sessions, dissemination of memos and case opinions, and counseling. Further, each attorney had received training in law school and participated in self-training after law school." The jury also found the required "deliberate indifference" to training needs. Following lengthy discussion in the appeal about whether this "deliberate indifference" had to be intentional indifference, the Fifth Circuit held that it does not. In the Thompson case budget cuts were not mentioned as an excuse for failure to train, but it can be reasonably inferred from the case that calculated budget cuts would be held to be intentional "deliberate indifference."

Thompson was decided just a month after the United States Supreme Court heard oral arguments in Goldstein v. City of Long Beach, 481 F.3d 1170 (9th Cir. 2007), cert. granted --S.Ct.--, 2008 WL 169967 (U.S. April 4, 2008). Goldstein involved claims of failure to train, supervise, or set policy on the sharing of information concerning jailhouse informants resulting in a discovery violation. These functions were held to be administrative activity by the Ninth Circuit, resulting in a denial of absolute immunity. The case is...