Teaching Students How to Write to Avoid Legal Liability
Clark, Thomas, Business Communication Quarterly
Researchers are paying increased attention to the relationship between business communication and legal issues. For example, a recent (April 1996) issue of The Journal of Business and Technical Communication was devoted to legal writing and eight papers at the 1996 ABC annual convention addressed legal and ethical issues. This attention reflects the perception that we have entered what law professor Annette Crawley has dubbed the "era of toxic torts." In addition to growing numbers of suits filed by business competitors and government agencies, "citizen groups, neighborhood associations, employees and consumers are litigating ... in record numbers" (Crawley, 1993, p. 223). These suits are typically aimed at corporations and their executives, who can be held personally liable for violations of the law.
Corporate lawyers are highly mindful of the potential for severe personal as well as corporate liability. Ronald (1994) cites a 1992 Arthur Andersen survey revealing that general counsel finds the threat of jail for corporate executives an overwhelming concern. Similarly, a recent Price Waterhouse survey found that 40% of the companies responding had elevated oversight of corporate compliance to the board of directors' level (Williams, 1995).
This article describes guidelines I provide to my students in a unit of the business communication class devoted to legal issues. I decided to incorporate such instruction after a discussion with a corporate lawyer representing a Fortune 25 consumer products company. Her company turns over an average of 500,000 pages of company documents annually in response to subpoenas. Opposing lawyers search these messages for any violations of the law, including, for example, antitrust activities, unsafe products, or failure to comply with environmental or personnel standards. Documents prove to be crucial because cases often revolve around proof of intent, a claim typically proven through the language used in memos, letters, reports, and even e-mail and voice messages. She tells fellow employees that chances are good that they will be subpoenaed at some point to discuss a message they either composed or received.
The corporate lawyer offers the following recommendation, which echoes one business communication teachers often impart to their students: Learn to write so that you can be clearly understood and also cannot be misunderstood. To implement this recommendation, I focus on two business writing principles:
1. Choose words carefully. Avoid words that have negative or damaging connotations, preferring language with positive or neutral connotations.
2. Draw conclusions carefully. Write with factual precision; avoid speculation and sensationalism; and, in light of increasing employment litigation, justify employment decisions solely on grounds related to meeting norms for the position.
Choosing Words Carefully
Word choice figures prominently in litigation. To illustrate the importance of avoiding words that have negative or damaging connotations (Locker, 1989), ask the class: If you were a lawyer sifting through thousands of pages of subpoenaed documents searching for incriminating evidence, would you give special attention to ones marked with guilty sounding words such as "Destroy after reading," "Confidential, For Your Eyes Only," and "No copies," phrases which suggest a fear that disclosure would be damaging to the company? The consensus of "yes" answers illustrates to the class how phrases that indicate the priority of a document to an internal audience may, in fact, be used to prove guilty intent by a hostile audience, an important insight into audience analysis (Fielden & Dulek, 1990).
Antitrust litigation illustrates the relevance of negative connotation to avoiding legal liability. Government and corporate attorneys prosecuting antitrust cases search for words that indicate intent to inhibit open competition. …