1. Careful Communication
Note to Trainer:
This Training Module provides all of the materials needed to conduct an effective classroom-training course:
1. PowerPoint slides with suggested narration (though you should feel free to customize the narration to be specific to your organization’s culture and/or to highlight issues that your organization has encountered in the past). Interspersed throughout are “In the news…” clippings and “Pop-Quiz” questions and answers pertaining to this topic.
A link at the end to an interactive quiz/game that you can use to assess your audience’s understanding of the material. (You will need an Internet connection to access the quiz/game.)
You can add your organization’s logo to the slides by inserting it in the “Slide Master” and “Title Master” layouts. Search for “slide master” in PowerPoint’s help guide for instructions.
The course is also available online for those who cannot attend the classroom session(s). The online version includes exactly the same content (including the quiz/game) in an interactive format, so you can be sure that online attendees receive the same information as those you train in the classroom. The online version includes full tracking and reporting of employee participation, as well as automated “reminder” s to ensure high completion rates.
For more information or to set up the online version, visit

2. Careful Communication
11/24/2019
Welcome
This training course was developed by WeComply, a leading provider of ethics and compliance training since The course is also available online from any Internet-connected computer. WeComply offers 60+ courses on a wide range of business ethics and compliance topics. Each course helps employees spot key compliance issues and respond appropriately. This course is designed and licensed for classroom use in parallel with WeComply's online course on the same topic. This course may not be hosted on a learning management system or distributed to employees individually by electronic or other means without WeComply's prior authorization. For more information about this course or others, whether for classroom use or online access, please or call WeComply.
Note to Trainer:
This slide may be removed
Copyright © 2010 WeComply, Inc. All rights reserved.

3. Introduction
Thank you for participating in our Careful Communication training course. This course will help you take a closer look at your written and spoken communications on behalf of our organization to be sure that you're communicating as effectively— and compliantly — as possible. Keep in mind that this material is provided for informational purposes only and is not intended as legal advice. If you have questions about how any of this material applies to your job responsibilities, please direct them to your supervisor.
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4. Overview
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
With the arrival of the Information Age and the explosion of technology, communication is faster but not always better. It's easy to become so preoccupied with "taking care of business" that we miscommunicate our messages.
These unintentional slip-ups can make their way into any number of communications — from letters, formal reports and memoranda to hasty s and cocktail-napkin scribbles — and can cause any number of legal problems for individual employees and our organization. As a result, we need to think defensively about the legal consequences of what we say and write.
Many employees believe that if they act with integrity and simply follow their bosses' or customers' instructions, their good intentions will keep their communications from becoming a legal "smoking gun." In reality, however, nothing could be further from the truth. Almost everything we say or do on behalf of our organization can be used as evidence against us at a later date. Documents, both paper and electronic, create a paper trail that lawyers can use to "connect the dots" to paint a picture that is not very pretty.
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5. Know Your Audience
Avoid behavior that can form the basis of a lawsuit Employees will generate about four trillion messages this year Careless practices expose employees and their companies to millions or even billions of dollars in potential liability Nature of makes it difficult to control flow of information and size of your audience Method of communication is sometimes as dangerous as its content
If you want to keep yourself and our organization out of the courtroom, the answer is easy: Avoid behavior that can form the basis of a lawsuit. Unfortunately, this is easier said than done — especially in an age of increasing use of .
Some 72 million employees are now using and will generate about four trillion messages this year alone. Every week another news report tells of a company whose employees' careless practices — whether tasteless jokes forwarded to colleagues or confidential information leaked to the public — have exposed themselves and their company to millions or even billions of dollars in potential liability.
Because is computer data, it's easy to record, catalogue and store. The "click and send" nature of means that messages multiply effortlessly, making it difficult — some say impossible — to control the flow of information or the size of your audience. Without a solid grasp of who will read your messages, a casual, conversational can be easily misunderstood. Thus, the method of communication is sometimes as dangerous as its content.
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6. Know Your Audience (Cont’d)
Avoid behavior that can form the basis of a lawsuit Employees will generate about four trillion messages this year Careless practices expose employees and their companies to millions or even billions of dollars in potential liability Nature of makes it difficult to control flow of information and size of your audience Method of communication is sometimes as dangerous as its content
Method of Communication
Even lower-tech means of communication are not foolproof. For example, a prominent retailer accidentally faxed confidential information about a wholesaler to a competing wholesaler and was held liable for $73 million in damages. Or consider the eager sales representative who used a payphone at a trade show to give her assistant detailed instructions for a slide presentation that would be delivered to a large, prospective account later that week. A competitor, pretending to use the adjacent phone, overheard her and used the information to meet with the same prospective account a day earlier and snag the business.
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7. Pop Quiz!
Louise, an XYZ Inc. manager, is talking with a co-worker on her cell phone while on the train to work. They are discussing a planned merger that has not yet been announced publicly, but Louise was careful not to say the other company's name. Was this okay?
Yes, as long as Louise 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.
Answers:
A. This is incorrect.
These circumstances might make it okay for Louise to have a brief personal conversation, but they were not conducive to a business-related conversation — especially one involving material, nonpublic information about XYZ.
B. This is incorrect.
If neither company is a public company, there would be no threat of "insider trading" as the result of someone overhearing Louise's side of the conversation, figuring out what companies she was talking about, and buying or selling stock in either company based on that information. But this doesn't make the practice "okay."
C. This is correct.
These circumstances might make it okay for Louise to have a brief personal conversation, but they were not conducive to a business-related conversation — especially one involving material, nonpublic information about XYZ. If either company is a public company, Louise could've set herself up to violate several federal securities laws. If anyone sitting near her on the train happened to work for a competitor, Louise would've faced a different set of problems. This was not okay for many reasons.
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8. 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
Another way to keep yourself and our organization out of the courtroom and away from costly claims is to understand the laws that govern our business. Without intending to break the law or trample someone else's rights, you may find yourself in hot water if you are uninformed about your and our legal rights and responsibilities.
For instance, a consulting firm did not realize that its notes from a client meeting could be "discovered" — that is, requested by a third party — in a legal action against the client. The notes found in the consultants' file stated that the client "wants to get rid of customer X and needs backup documentation from us." Customer X later named the consultants in a lawsuit alleging defamation and interference with contract.
Another area rich with unintentional smoking guns is aggressive marketing or sales documentation, which can easily run afoul of the antitrust laws. One of the most famous examples is the Microsoft antitrust case, in which an message from a key Microsoft employee referring to "cutting off [the competitor's] air supply" was cited as evidence of Microsoft's illegal, anticompetitive intent.
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9. 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
Legal Rights and Responsibilities
Keep in mind the adage that "ignorance of the law is no excuse." Consider, for example, the employee who wanted to photocopy and distribute a magazine article to several hundred people within his company. After contacting the publisher and determining that the cost of reprint permission was too high, the employee nonetheless distributed copies of the article with a notation at the bottom proclaiming, "Reprinted without permission." The employee simply did not realize that the knowing, intentional violation of copyright law is a criminal offense.
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10. 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
Once you realize that your audience is potentially boundless and you understand the laws affecting our business, be aware of your own limits. While everyone likes to be helpful and do a good job, you should be careful when communicating about matters that are beyond your area of expertise or first-hand knowledge.
Take customer complaints, for example. In many cases, the real source of customer problems is something that has nothing to do with the product or service. Yet when those calls come in, they can find their way into the complaint file, even if they are unverified. At a later date, these records can be used to show a pattern of complaints about the product or service, and the inference can be drawn that they are unreliable — or worse yet, defective.
How could doing something so right turn out to be so wrong? It happens when an employee assumes that a complaint is true simply because someone made it. Instead, the employee should identify in the customer's file the source of the information and the fact that it is unverified. If a follow-up investigation shows that the complaint or comment is invalid, the employee should note this in the file, as well.
Don't Admit a Defect
You can take the sting out of refund documentation if instead of citing "defective equipment" as a reason for giving the refund or credit, you state, "Customer alleges defective equipment."
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11. Watch What You Say
Words can have unintended legal consequences Letter or 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
A customer calls looking for a product recommendation. A diligent employee sends the customer a letter or outlining the virtues of several products in glowing terms and identifying one product as "ideal" for the customer's intended use. The customer buys the recommended product but later finds it to be less than ideal.
What the employee may not have realized is that the letter or could be used as evidence of a warranty that could supersede the limited warranties contained in the product documentation. In this particular example, identifying a product as being fit for a particular purpose would also open the door to a wide range of additional damages in the event of a claim or lawsuit.
A better course of action is to keep the recommendation just that — a recommendation. Make suggestions, but let the customer make the decisions. List the assumptions underlying your suggestions, restating the facts as you understand them. Be very careful not to promise more than you and we can deliver.
Puffing vs. Warranty
Although the law recognizes that a certain amount of "puffing" is inherent in the sales process, the law also recognizes that too much puffing can rise to the level of a warranty. In extreme cases, puffing or flashy adjectives can even be used to prove fraud. For example, using the word "waterproof" when in fact a product is merely "water-resistant" can raise serious problems.
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12. Special Note…
Speculation vs. Documentation Any type of investigation — whether it is a customer complaint, an accident, or a compliance or quality issue — invites its authors to speculate and draw conclusions. Brainstorming and speculating can play a useful role in investigations. When documenting the process, however, take care to distinguish what you really know from what you are not sure about or really don't know. Faulty opinions or erroneous information can be hard to explain away in a courtroom. The best practice is to stick closely to the facts you know and let the data speak for itself.
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13. 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
Documented problems need not become legal landmines if you obtain closure of some sort — whether or not every problem can be resolved successfully.
First, whenever you're able to resolve a complaint, document the solution. Explain how and when the problems were fixed. To the degree your files reflect a reasonable decision-making process within a reasonable timeframe, you and we will be better able to deflect legal claims.
Where there is no quick fix for a problem, an action plan and schedule for addressing the issue will at least convey the message that we are not intentionally ignoring a risk. The last thing we want to do is create the impression that we don't care about our customers.
Sometimes events unfold quickly and there is not enough time to fix them. This is where a good crisis-management plan can come to the rescue. A good plan is one that balances sensitivity to legal risk with concern for the public interest.
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14. 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
Ignoring a Risk
The famous McDonald's case, in which a woman sued after scalding herself with a cup of coffee purchased at a drive-thru, is a case in point. Although many viewed the verdict as excessive, most reports failed to mention that McDonald's sold its coffee at 180 to 190 degrees by corporate specification. At those temperatures it takes only two to seven seconds of skin contact to cause third-degree burns. Furthermore, the evidence showed that McDonald's had known about this risk for more than 10 years, and company witnesses testified that they did not intend to turn down the heat. In response to the company's behavior and attitude, the jury socked it with $2.7 million in punitive damages. McDonald's got the message — today its coffee is sold at approximately 158 degrees, a temperature that allows approximately one minute to mop up a spill before resulting in third-degree burns.
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15. 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
The reality is that all sorts of information finds its way into files, electronic or otherwise. Some smoking guns are inevitable, but keeping all documents forever is not. A powerful tool in the war against smoking guns is a consistently followed record-retention policy.
Consistent application of a record-retention policy means that all documents are stored for their full retention periods. It is well-established that electronically stored records may be introduced as evidence in court and that supposedly "deleted" files can often be resurrected. In the event of threatened or actual litigation, all records relating to the event at issue must be preserved as a special exception to the record-retention policy.
Failing to retain records for their full retention periods, or selectively purging records without regard to a schedule can have dire consequences. A judge or jury may well draw negative inferences from gaps in documentation, even if the documents are genuinely lost. In some situations, missing documents can lead to charges that evidence was deliberately destroyed, allowing a judge or jury to infer that the evidence destroyed was unfavorable.
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16. 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.
Answers:
A. This is incorrect.
The fact that a lawsuit may primarily affect one office does not mean that documents of other offices won't be considered relevant. With XYZ in litigation, its legal team should clarify whether there is a "litigation hold" — that is, whether regular record-retention practices should be temporarily suspended — and, if so, whether it applies company-wide or only to certain offices. If the legal team hasn't done so, Mike should discuss this with his supervisor.
B. This is incorrect.
With XYZ in litigation, its legal team should clarify whether there is a "litigation hold" — that is, whether regular record-retention practices should be temporarily suspended — and, if so, whether it applies company-wide or only to certain offices. If the legal team hasn't done so, Mike should discuss this with his supervisor.
C. This is correct.
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17. 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
Confidential communications between attorneys and their clients conducted for the purpose of obtaining legal advice are privileged communications — that is, they need not be disclosed in the event of a lawsuit. Attorney-client privilege provides this cloak of confidentiality to encourage a full and frank disclosure between the attorney and client, so that legal risks can be freely evaluated without fear of repercussions.
Communications with an attorney and client are the "center of gravity" of the privilege. Thus, a memorandum written by Vice President A to Vice President B with a copy to company counsel is not privileged, even if it sports a bright red "Confidential" legend across the top of the page. It fails because the message is between two executives, not between an attorney and a client seeking legal advice.
Thus, when faced with a high-risk liability situation, it is wise to consult with company counsel about whether the situation merits the cloak of secrecy that the attorney-client privilege provides. This is definitely true in cases of serious personal injury, fatality, serious property damage, due diligence, any threatened lawsuit, or any potential or actual violation of civil or criminal law.
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18. 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
Not Privileged
If, on the other hand, the letter were written to company counsel because it contained information needed in counsel's role as lawyer, Vice President B could still access the letter if it were sent to him by counsel, rather than as a copy from Vice President A. Essentially, communications must follow a hub-and-spoke pattern, in which counsel represents the hub that sends and receives information to, from and between individuals on a need-to-know basis at the end of each spoke.
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19. Special Note… Investigations
When a problem arises, your natural inclination may be to investigate. Yet, when someone other than a lawyer starts asking questions and engages in other forms of communications, that person creates evidence. Some of it may be smoking, some not.
One thing, however, is certain: In the event of a lawsuit, all of this evidence is discoverable. If the same investigation were conducted by or under the direction of a lawyer, these same communications would be privileged and protected from discovery under most circumstances.
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20. 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
"I'm never going to put anything in writing again," is the comment most often heard after a brief introduction to the subject of smoking guns. Writing is a useful skill that makes your job easier. Like all skills, however, writing improves with practice. If you are worried about your ability to write clearly and concisely, there are a number of steps you can take:
Have someone whose opinion you trust review your work and provide constructive feedback.
Sign up for a writing course in your area. Courses might be offered by a local community college or university extension program.
If you are concerned about the legal ramifications of a particular document, have company counsel review it before finalizing it.
When you then combine clear writing with consistent follow-up to achieve closure, you have a winning process. It's that simple.
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21. Final Quiz
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22. Careful Communication
11/24/2019
About WeComply
WeComply is a leading provider of customized ethics and compliance training solutions. We are committed to providing the best-of-breed training content, technology and customer service.
Specializing in ethics and compliance training since 1999
60+ ethics and compliance training courses in 42 languages
Content partners include the Association of Corporate Counsel (ACC), Proskauer Rose and White & Case
500+ clients of all sizes and in all industries
1-866-WeComply
Note to Trainer:
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Copyright © 2010 WeComply, Inc. All rights reserved.

23. Careful Communication
11/24/2019
Course-Delivery Options
WeComply offers training courses in multiple delivery formats to reach all employees -- not just those with computers:
1-866-WeComply
Online – available 24/7 from any computer
Mobile – tablets and smartphones
Offline options when Internet access is unavailable:
PowerPoint with presenter notes for classroom training
PDF booklets with tear-off certifications
CD-ROM/intranet with tracking via
Phone-based training and certification
Note to Trainer:
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Copyright © 2010 WeComply, Inc. All rights reserved.

24. Careful Communication
11/24/2019
Online Training Benefits
While classroom training has certain advantages, it can be challenging to implement in large and/or geographically dispersed companies. Consider these advantages of online training:
Better Attendance
Higher Completion Rates
Less Impact on Productivity
Perfect for New Hires
Convenient for Remote Locations
Available in 42 Foreign Languages
Easy Access to Courses
Periodic Refreshers
Blended Benefits
Get the best of both worlds by providing classroom training where feasible and online training elsewhere – all centrally tracked and organized for easy monitoring and reporting.
Note to Trainer:
This slide may be removed
Copyright © 2010 WeComply, Inc. All rights reserved.