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THE GOOD DOCUMENTS blog

Dangerous Writing: Usual Suspects #9 - 12

Posted Apr 9, 2013, by Roy Speed

Dangerous writing [This is the final blog in a three-part series addressing 12 high-risk writing behaviors your employees need to be aware of. Each of the images shown below right is a link to a graphic we use to reinforce our training on these behaviors.

If you missed Part 1 in this series, just click here, and Part 2 is here.]

To manage document-related risk, you need all employees on the same page about the things that can cause trouble -- the particular behaviors in writing that plaintiffs' attorneys might use to support claims that your company is unethical, deceitful, incompetent, or even just plain insensitive. In our training, we call these behaviors "The Usual Suspects," and here we'll present behaviors 9 through 12.

No. 9: Virtual meetings
This phrase refers to a common type of email -- the string of messages that forms an extended discussion that's forwarded and cc'ed among a group of employees. What's going on is that they're conducting a meeting in email, usually because it's a lot easier than finding a conference room or coordinating schedules for a conference call.

The problem: They're not in a conference room. They're not on a conference call. They're in email -- and creating a virtually permanent record of every half-baked idea, every harebrained thought that occurs to anyone in the group.

Every employee needs to understand two things about "virtual meetings":

When the discussion strays into a sensitive area, it must be taken offline, moved into some medium -- like a conference call -- that doesn't involve the inadvertent creation of permanent business records.
The discussion must be simply moved, not stifled. The point is not censorship of half-baked thoughts, but choosing a medium in which there is no penalty for half-baked thoughts.

We've treated this whole topic in some detail here and here.

No. 10: Limited information
Employees sometimes find themselves dealing with sensitive situations in which the information available is incomplete, and they need to understand that in such situations, creating a business record is fraught with risk. Once in writing, an incomplete or inaccurate account can be made to appear deliberately misleading or may be used to support claims of incompetence.

The problem, of course, is that employees often need to report on still-developing situations and -- despite our warnings about the risks -- sometimes need to write. For such situations, we must arm them with simple approaches they can use to reduce the attendant risks (essentially, tools for framing the document in ways that kill its usefulness to anyone bent on misusing it).

No. 11: Violations of individual privacy
Employees in many functions may already be sensitized, for instance, to HIPAA rules, and that's all to the good.

But all employees need to be cautious whenever they find themselves mentioning in writing any kind of personal data -- employee records, patient information, or details in any way traceable to particular individuals. Employees must also be warned against in any way being cavalier about such information:

I can't believe this investigator. He's being a
real stickler with procedure, refusing to give
me access to the patient's medical records. Yet,
as I type this, I'm standing here in the clinic
looking at the patient's chart...

No. 12: The Hero Syndrome
There's an impulse to which employees are sometimes susceptible -- an impulse that can result in bad documents. We call it "The Hero Syndrome," and it works like this:

The employee encounters a situation or a decision that seems so misguided that the employee is outraged; he feels compelled to act -- specifically, to write. So the employee takes a stand in writing and broadcasts the error he has discovered (or thinks he has discovered) to a large audience, without checking his facts or discussing his concerns with colleagues, just sounding the alarm to all concerned.

All employees need to understand two things about anyone faced with this situation and the attendant temptations:

He or she is about to create a permanent record of dubious business value.
That record may pose significant legal risk.

Final thoughts
I suspect that we underestimate employees, and in a number of ways. My own experience with knowledge workers, and pharma employees in particular, suggests that not only can they be trained to appreciate the perspective of in-house counsel, they want such training.

Knowledge workers grasp with alacrity the notion that sound business records -- clear, factual, complete -- are often our best defense. "The Usual Suspects" are behaviors that result in the exact opposite: documents that are ambiguous, susceptible to misinterpretation and even deliberate distortion. Every time I've catalogued for employees this list of misguided behaviors, I've found those employees riveted -- fascinated by the examples I offer, eager to understand the implications for company attorneys.

They want to be part of the solution, not part of the problem. When well delivered, training on such matters can be compelling, even unforgettable. It can forever change a company's writing culture.

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Our Good Documents blog tackles the challenge of preventing bad documents: emails or other documents so ill-conceived or poorly written that, in a legal or regulatory situation, they would have to be "explained." — Please email me with any questions or issues you'd like to see addressed here.

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