copyright© 2010 wecomply, inc. all rights reserved. 5/7/2015 careful communication

Copyright© 2010 WeComply, Inc. All rights reserved.

04/18/23

Careful Communication

Copyright© 2010 WeComply, Inc. All rights reserved. 3

Introduction

Communication today is faster but not always better

Unintentional slip-ups can cause legal problems for employees and our organization

We need to think defensively about the legal consequences of what we say and write

"Good intentions" cannot keep careless communications from becoming a legal "smoking gun"

Almost everything we say or do can be used as evidence against us

Documents create a paper trail that can paint a not-so-pretty picture


Know Your Audience

Avoid behavior that can form the basis of a lawsuit

Employees will generate about four trillion e-mail messages this year

Careless e-mail practices expose employees and their companies to millions or even billions of dollars in potential liability

Nature of e-mail makes it difficult to control flow of information and size of your audience

Method of communication is sometimes as dangerous as its content


Know Your Audience (Cont’d)

Avoid behavior that can form the basis of a lawsuit

Employees will generate about four trillion e-mail messages this year

Careless e-mail practices expose employees and their companies to millions or even billions of dollars in potential liability

Nature of e-mail makes it difficult to control flow of information and size of your audience

Method of communication is sometimes as dangerous as its content


Pop Quiz!

Lou, an XYZ Inc. manager, is talking with a co-worker on his cell phone while on the train to work. They are discussing a planned merger that has not yet been announced publicly, but Lou was careful not to say the other company's name. Was this okay?

A.Yes, as long as Lou doesn't name names and there are only a few people close enough to hear.

B.Maybe, as long as XYZ and/or the company it may merge with are not public companies.

C.No.


Understand the Law

You need to understand the laws that govern our business

Stay informed about your and our legal rights and responsibilities

•Even "notes to the file" are subject to discovery by third parties

•Aggressive marketing or sales documentation can run afoul of antitrust laws


Understand the Law (Cont’d)

You need to understand the laws that govern our business

Stay informed about your and our legal rights and responsibilities

•Even "notes to the file" are subject to discovery by third parties

•Aggressive marketing or sales documentation can run afoul of antitrust laws


Recognize Your Limits

You need to be aware of your own limits

Be careful when communicating about matters that are beyond your area of expertise or first-hand knowledge

Example: Customer complaints

•Source of problem may have nothing to do with product or service

•Unverified complaints can be used to show "pattern"

•Pattern can lead to inference that product/service was defective

Don't assume a complaint is true simply because someone made it


Watch What You Say

Words can have unintended legal consequences

Letter or e-mail could be used as evidence of a warranty

This can open door to wide range of damages in a claim or lawsuit

Keep a recommendation just that — a recommendation

Make suggestions, but let the customer make decisions

Don't promise more than you and we can deliver


Special Note…


Manage Closure

Obtain closure of some sort — whether or not problem can be resolved successfully

•When you resolve a complaint, document the solution

•Where there is no quick fix, create an action plan to show that we are not ignoring a risk

• If events unfold too quickly to fix problems, look to crisis-management plan that balances legal risk with concern for public


Manage Closure (Cont’d)

Obtain closure of some sort — whether or not problem can be resolved successfully

•When you resolve a complaint, document the solution

•Where there is no quick-fix, create an action plan to show that we are not ignoring a risk

• If events unfold too quickly to fix problems, look to crisis-management plan that balances legal risk with concern for public


Follow Record-Retention Rules

All sorts of information finds its way into files

Record-retention policy is powerful tool in the war against smoking guns

•All documents should be stored for their full retention periods

• All records relating to litigation must be preserved as special exception to record-retention policy

• Premature or selective purging of records can have dire consequences


Pop Quiz!

Mike learns that XYZ Inc. is involved in a major lawsuit that affects a branch office in a different state. What does he need to do with regard to XYZ's record-retention policy?

A.Nothing, because the lawsuit involves another office.

B.Continue to follow the existing record-retention guidelines.

C.Check with his supervisor.


Use Attorney-Client Privilege with Care

Confidential communications between attorneys and their clients conducted for the purpose of obtaining legal advice are privileged communications

Communications between two executives with a copy to counsel are not privileged

Consult with company counsel when faced with high-risk liability situations, e.g. —

•Personal injury/fatality

•Serious property damage

•Threatened lawsuit

•Actual/potential violation of law


Use Attorney-Client Privilege with Care (Cont’d)

Confidential communications between attorneys and their clients conducted for the purpose of obtaining legal advice are privileged communications

Communications between two executives with a copy to counsel are not privileged

Consult with company counsel when faced with high-risk liability situations, e.g. —

•Personal injury/fatality

•Serious property damage

•Threatened lawsuit

•Actual/potential violation of law


Special Note…


Work on Your Writing

"I'm never going to put anything in writing again!"

Writing improves with practice

To write more clearly and concisely:

•Have someone review your work and provide constructive feedback

•Sign up for a writing course

•Have company counsel review important documents before finalizing them

Clear writing + consistent follow-up with closure = winning process


04/18/23

Final Quiz


04/18/23

Questions?


04/18/23

Thank you for participating!

This course and the related materials were developed by WeComply, Inc. and the Association of Corporate Counsel.

copyright© 2010 wecomply, inc. all rights reserved. 5/7/2015 careful communication

Documents

legal rights

careful communication

content slide

email messages

pretty picture slide

lawsuit employees

year careless email

antitrust laws