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Dangerous Writing: The Usual Suspects #5 - 8

Posted Sep 2, 2012, by Roy Speed

Dangerous writing[This blog is the second 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 material we use to reinforce our training on these behaviors.

If you missed Part 1 in this series, just click 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 5 through 8.

Click to download PDF

No. 5: Attributions to others
This behavior is about attributing to others in your company specific comments, knowledge, or motives. Employees may make such attributions in a casual, offhand manner, but in the event of a legal or regulatory investigation, such writing might seriously compromise the company.

Here's an example:

They know perfectly well that conducting this trial
will increase off-label usage of this product.

No. 6: Venturing out of your realm
This one is a matter of recording thoughts or opinions where you yourself have limited knowledge, expertise, or responsibility. If you're in marketing, for instance, it can be dangerous to express opinions about medical issues. And the same warning holds for other types of wandering opinions:

Click to download PDF
  • If you're in research, it's dangerous to offer your views on marketing ramifications.
  • If you're in regulatory, it's dangerous to offer an opinion on potential litigation.

-- and so on. To illustrate, imagine a marketing executive writing the following:

I can't believe this investigator thinks this
incident is serious. And her recommendations for
corrective action will put us at a competitive
disadvantage.

Now imagine this executive's remarks coming to light in the course of an investigation where the company's handling of adverse events has come into question. Such remarks might undermine the company's claims about its adherence to procedure and bolster suspicion of its rigor, values, and standards (See? All they care about is their competitive position...).

Click to download PDF No. 7: Rumors
Exactly what it sounds like: committing to writing what really amounts to no more than gossip.

Employees must be taught to distinguish What they know from What they think or What they've heard. Enshrining baseless information in a business record (like an email) lends it a legitimacy it doesn't deserve. What's more, such writing is almost certainly a needless distraction from legitimate business results. Examples:

I heard they might change all our product assignments.

I heard our competitors are launching SIX reps.
Think we might be outgunned?

Click to download PDF

No. 8: Speculation
As with Rumors (No. 7 above), the issue here is employees' wariness about distinguishing facts, things they know, from things they're merely thinking about or concerned about.

In writing, there are two especially dangerous kinds of speculation. The first is employee speculation about the legal risks of what they're discussing, doing, or considering doing -- or drawing legal conclusions about what they're doing. Example:

This could infringe Municon's patent, no?

Equally risky is speculation about regulatory impact:

If my sources are anywhere near correct,
the FDA will never approve this product without
tremendous pressure.

Employees must understand that what makes such writing problematic is, first, the creation of a business record with no factual basis, and second, the creation of a business record at a point when the nature of a particular problem -- or indeed, whether there is any problem at all -- is still a matter for speculation.

Coming soon: The final four "Usual Suspects."

 

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ABOUT THIS BLOG

Roy Speed

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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