[Ryan Weber] Welcome to another episode 10-Minute Tech Comm. I’m your host Dr. Ryan Weber from the University of Alabama in Huntsville and today I’m bringing you an interview with Dr. Jeff Todd, from Texas State University, San Marcos, and he’s talking to us about his article in the latest issue of the Journal of Technical Writing and Communication about avoiding litigation for product instructions and warnings. So, he’ll tell us how to avoid lawsuits as a technical communicator.
[Weber] Alright well welcome to the podcast Jeff and thanks so much for agreeing to talk to me today. One of the things I wanted to ask you first, in your article you write that “A technical communicator should think first and foremost about how to prevent exposing his or her employer to the time expense and uncertainty of trial.” So to you what does this mean and how can a technical writer do this?
[Jeff Todd] You know having been both the technical communication world and then practicing law, I see how complex the law is. Right it has every state has laws, the federal system has laws. It takes three years of full-time graduate school, a bar exam, just to practice law, and so there’s so much that’s out there. There is an importance for technical communicators, especially those who are writing a product instructions and warnings to get it right. Because the law is so complex, I thought well is there any way I could distill it down, just focus on the most important parts, and I realized, “Well what do defense attorney’s do?” We look at what element can we defeat because most product liability claims are tort claims and those are elemental. And then when I teach even my law students, I say “Okay if you’re on the plaintiff side, you have to prove every element. If you’re on the defense side, you just have to disprove one.” And so, I thought that technical communication academics might also appreciate thinking like a defense attorney also right. Like instead of having to learn everything about the law, which is so huge, why not focus on one element, get really good with that and that can be the legal literacy you know that Hannah advocates. So, the example will be negligence, that’s the prime theory of tort law: duty, breach, cause and effect, approximate cause, and damages. Well the hardest for plaintiffs to prove is breach, so that’s the one that technical communicators should be aware of. Show that they acted reasonably, document you meeting with people, document research, you know just show that their behavior is reasonable, and breach can be defeated.
[Weber] So what you’re saying is that it’s harder for a plaintiff in a way than for the defense to prove in these tort claims it’s more difficult because the plaintiffs have to prove all the elements and the company only has to disprove one. So, the-
[Todd] That’s absolutely right. In fact so negligence has five elements. The plaintiff has the burden of proof and the burden of persuasion. That means you have to prove each of the five elements by a preponderance of the evidence. When it’s fraud, an even higher standard than that.
[Weber] Can you describe real quickly those five points of negligence? Again, I know you mentioned them just a moment ago, but can you give them to us one more time?
[Todd] Yeah sure. Negligence is the dominant theory of tort law because it can apply to any behavior that causes harm to person or property. It’s duty, breach of duty, cause and effect, approximate cause, and damages. Duty is a question of law. Everybody has a duty to behave reasonably right? To do things that won’t cause harm. The breach is the hardest one for plaintiffs to prove. They have to show that the defendant behaved unreasonably. So, what can technical communicators do to make sure they don’t breach a duty? Behave reasonably: document research, show that they’re following best practices, follow regulations or statues or even industry custom for writing warnings and writing instructions.
[Weber] And you had mentioned in your article that there are warnings to include and warnings to not include. So in other words, there’s a duty to instruct and warn but that doesn’t cover every conceivable warning, is that correct?
[Todd] Yeah, that’s correct, and this speaks for both negligence and the restatement. A lot of times-duty is a question oflaw. They can dismiss a cause of action if there’s no duty to warn or no duty to instruct and so for products to have an obvious danger, let me throw out a knife. Knives are sharp. You can cut yourself with a knife, right? But everyone knows that. That’s why knives don’t all say, “Caution sharp,” because people know this. And also uses and misuses. Now some misuses are foreseeable; people standing on chairs to reach high places.
[Todd] But a lot of misuse, like if you have to circumvent safety features to turn a product on, that’s a fantastical misuse. So, there’s no duty to warn or to give instructions for obvious dangers or fantastical misuses. The point I want to make about that is if the technical communicator decides to give warnings or instructions about those, they are creating more opportunities for the warning to be inadequate. So, if there’s no duty to warn or to instruct, then don’t warn or instruct.
[Todd] Leave that alone. And I think that’s a way of helping to reduce litigation is understanding obvious and what’s a fantastical misuse and then now it just comes down to rhetoric. What would a reasonable person do in a certain situation? What kind of language is going to reach the target audience for this particular product? And so forth.
[Weber] Great, great, and you mentioned this a moment ago and you mentioned your article as well, is the third restatement. What is that and then what do technical communicators need to know about it?
[Todd] Let me back up just a little bit. Some basic history, torts, contract, property law, these are all state law. You know there’s not like one big federal law about these subjects and so they’re based on the common law or on cases, you know published opinions. And so, the law builds and develops over really the centuries based upon courts issuing opinions. So, different states can have slightly different variations of the same kind of tort concept or contract concept. So, what the American Law Institute decided to publish these restatements of the law, to look at what are the most common concepts that most states seem to follow and then issue statements with commentary and even citations to support those. The restatement is not itself law, but a court can decide it and then it becomes the law of that state, and that’s what most courts do.They’ll cite the restatement and it becomes the law of that state.
[Weber] Got it.
[Todd] In the 1960’s, the restatement second actually didn’t really restate the law, so much as created the law of strict liability for products. And strict liability works pretty well for a manufacturing defect, you know if a spring is missing in one of a thousand units, okay that’s fine, but for design and for warnings and instructions, those are more conscious choices. So, negligence is the more appropriate theory. In the 90′ s the ALI provided with the third restatement of torts and products liability, specificity products liability, and that restatement is a functional approach. So, instead of saying, “Well it’s strict, or it’s negligence, or it’s warranty,” say “Okay let’s look at the three main types of product defect: manufacturing, design, instructions and warnings, and describe you know what is adequate and what is inadequate.” Courts by and large have adopted the third restatement, so I thought it was important to talk about that. And I think the most important part of the restatement third is what we talked about earlier, about whether it’s a duty to warn and instruct, because the restatement has several comments that talk about that and I think that that would be the biggest takeaway.
[Weber] Good and then are there any other actions you know getting back to your initial idea of helping to prevent a trial as a technical communicator, are there any other actions that technical communicators can take to help avoid or defeat litigation involving their writing?
[Todd] Yeah, I think two things to keep in mind. One would be while we typically think of product liability actions as torts, they can also sound in contract law. It’s approval in a contract case is very different and by state contract law, I’m thinking warranty. And so what’s a warranty? A warranty is a promise, okay. And so if product documentation contains statements of fact and that can include just a description of the product and that statement is false and there is an injury that relates to that particular factor, then a product liability cause of action can go through contract. The reason why it’s important is every once in a while, the tort claim might fail but the contract suit succeeds. And that could-the defendant, the company, to years of litigation, cost, and so forth. The other thing I would just say is, I kind of give four factors in the article, on page 416, and I think if you can follow these in addition to any kind of rhetorical training, tech writing education that they have, these would be good. So, (1) don’t instruct about obvious risks or unreasonable uses and misuses, (2) use rhetorical sound theories for writing product documentation and record that adherence, (3) comply with relevant and applicable statues and government regulations as well as industry customs, and then (4) ensure the product documentation makes no affirmative promises or representations of facts that are false.
[Todd] I mean those are kind of common sense, but I think what I really wanted to do was just emphasize that by following some of these basic concepts that technical communicators can help their employers avoid being sued and if they are sued to then prevail over the lawsuit.
[Weber] Great, great, and then one last quick thing. You mentioned a couple of times the issue of documenting your reasonableness and I like that also you know sort of a tech writing concern, but what kinds of legally acceptable ways are there for me to document that I’m behaving in a reasonable fashion? Or you know adhering to the law? Or you know doing due diligence to something?
[Todd] In litigation once you get into the discovery phase, the idea is wide open discovery. Almost anything can be discovered if it’s in control of one of the parties. My view is you know if you’re sending emails, if you’re keeping a log, if you’re doing-you know keeping your notes.
[Todd] Just anything that shows that, “Hey we asked a question about this or we made a choice for this reason and we followed our peers and we followed up with technical people,” you know anything that shows that you’re behaving reasonably can help to avoid most of the common restatement and negligence lawsuits.
[Weber] Great, well thank you very much; this was really interesting. Hopefully it saves someone some legal trouble down the road. So, I really appreciate your insight and have a great day.
[Todd] Thanks, you too.
[Weber] Alright bye.