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Careful Communication. Careful Communication. 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.

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Presentation Transcript
introduction
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
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
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
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?
  • Yes, as long as Lou doesn't name names and there are only a few people close enough to hear.
  • Maybe, as long as XYZ and/or the company it may merge with are not public companies.
  • No.
understand the law
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
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
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
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
manage closure
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
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
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 quiz1
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?
  • Nothing, because the lawsuit involves another office.
  • Continue to follow the existing record-retention guidelines.
  • Check with his supervisor.
use attorney client privilege with care
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
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
work on your writing
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
thank you for participating

Thank you for participating!

This course and the related materials were developed by

WeComply, Inc. and the Association of Corporate Counsel.