Failure to Train
Is an Organizational Question

• Professor Gregory Gilbertson (Ret.): thirty-eight years across policing, the Army, the classroom, and investigative casework. Independent consultants are retained case-by-case where the record calls for a second discipline.
• Retained in more than 220 civil rights and criminal cases across 42 states and the District of Columbia; expert practice since 2014.
• Retained by plaintiff’s counsel and by the defense alike, in civil and criminal matters.
• Fees are published: a $9,000 flat fee covering discovery review and the written expert report; the full schedule is on For Retaining Counsel.
• Attorney and law-firm inquiries only; conflicts are checked before any substantive discussion. (239) 571-1840.

Opinions address police practices and standards; ultimate legal conclusions on liability remain for the court.

The organizational opinion is built on the incident analysis, not beside it. That analysis reads the whole encounter against agency policy and generally accepted police practices, on what was known at the time and without hindsight, and it ends with the departures it documented, each cited to the record. The work of a failure-to-train expert witness starts from those departures rather than from the agency's training program at large. That gives the reading a fixed target: an agency's files on training, review and discipline reach well beyond any one encounter, and Professor Gilbertson reads them for the conduct the departures name.

A departure here means conduct the incident analysis found inconsistent with agency policy or with accepted practice. It is a practices finding, not a finding that a right was violated or that the agency is liable, and setting it beside the agency's systems yields practices findings of the same kind. Nothing in that reading reopens the incident findings, and a gap found in the agency's systems is recorded beside the officer's departure, never folded into it. A departure from a written directive is documented the way a police procedures expert witness documents one: the requirement the directive states, the conduct the record shows, and the point where the two part.

Each departure is then set beside three agency systems, and the record is read for what each one did about that kind of conduct before the incident. The first is the system meant to prevent the conduct: the training the officer received. The second is meant to detect it: supervision, the review of force and, where the agency keeps one, an early warning system. The third is meant to correct it once detected: discipline, retraining and the decision whether the officer stays in the assignment.

The agency's oversight and accountability systems are examined on their own terms in supervision and discipline; this reading asks only what each did about the conduct in question. Where the officers met a circumstance no written directive reached, the departure is recorded as one no directive governed, and it is set beside the same three systems. How the incident analysis records such a departure is set out in policies and procedures.

The first is the pattern question. A departure that also turns up in other officers' incidents raises that question, which is worked at Monell pattern and practice from the records listed in the Monell record checklist. Its scope is set with counsel, because it reaches files the incident record does not hold.

The second is the legal question. Whether a gap in training, review or correction caused the officer's conduct or the injury, and whether it amounts to a policy, a custom or deliberate indifference, are questions for counsel under the rule stated in what a Monell claim is. Legal conclusions remain counsel's, so the report sets what each system required beside what it did and leaves the vocabulary of the claim to the briefing.

Professor Gilbertson, retained by both sides, asks the same three questions of the record for an agency's counsel, and the answers can show training delivered before the incident, a review that identified the earlier conduct and a correction that was completed. Each finding about the agency names the departure it was set beside and the dated record it rests on, which keeps the organizational opinion tied to the conduct this case is about. Where the agency is a sheriff's office, the chain of command generally runs up to the sheriff, and how that shapes the organizational record is set out under sheriff's office cases.

Case accounts as published by retaining counsel. Outcomes depend on their facts; no result is promised for any other matter.