Jeff Todd’s “Avoiding Litigation for Product Instructions and Warnings” is an in-depth analysis that’s purpose is to advise technical communicators how to avoid putting their employees and employer’s in a position that requires time and resource in order to go to trial.

 

The reason he is sharing his expertise is because it is coming from his own personal experience as a former litigator now turned technical communicator. In order to avoid his previous realm of work, Todd explains that technical writers need to have a fair understanding of the law. Within this general understanding of the article, he delves into six specific aspects technical communicators need to be aware of.

 

In his first section, Todd explains what causes a product to be liable. He explains that there are numerous checklists posed by organizations that work to reduce the problem of litigation; however, the problem with these checklists is that they can easily become out of date as the courts decide whether or not the product is liable based on current trends, information, and social norms.

 

Furthermore, Todd explains how the Restatement (third) of Torts: Products Liability, came to fruition. Before this claim, there was a concept known as strict liability, which states that “if the product is unreasonably dangerous and that dangerous quality cause harm, the manufacturer…is liable regardless of the precautions taken to prevent harm” (p. 403). As this claim is unreasonable, the Restatement (third) of Torts: Products Liability rejects this stance and instead states that “each cause of action has elements that must be proved…” (p. 404). Which is far more reasonable.

 

The second section articulates how a trial lawyer may go about approaching litigation. First, both parties involved need to understand the financial investment they are making in pursuing a trial. This includes the financial investment of the attorney. If the plaintiff loses and does not pay legal fees because of a “contingency fee arrangement,” all of the costs fall back on the attorney – this means an attorney must have an extensive understanding of the case and what the odds are for their client. Understanding what elements of the litigation make for a good or bad case is an essential part of an attorney’s job. And, although it may not seem like it, it is also a major aspect of being a technical communicator. Technical communicators need to be aware of the types of claims made against the plaintiff in order to avoid writing certain aspects of these failed elements.

 

In the final sections, Todd goes into greater detail about the Third Restatement. This is a combination of “strict liability, negligence, and breach of implied warrant” (p. 416). Even Todd admits that he hashed out excessive information in regard to these past sections. In order to prevent litigation as a result of the above elements, Todd breaks it down into four parts:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By abiding by these four simple rules, it will allow technical writers to avoid product liability trials. Although, as Todd notes, they are not novel ideas, they are commonly forgotten about, but necessary in protecting yourself, a company, and its employees.

 

​

 

 

Todd’s article was a very informative article that’s purpose was to protect future technical writers from experiencing the financial pain and job stress of a litigation trial. Although there was extremely important information detailed in this article, it was a difficult article to maneuver through. There were very few paragraph breaks, many paragraphs were very long. Additionally, many of the sub-headings were very ambiguous or unnecessarily simple that they articulated the entire paragraph.

 

I found Todd’s article to be extremely unappealing to the eye as well. A lack of infographics, font diversity, and white space between paragraphs made this article particularly difficult to read through. Furthermore, the final few sentences of this article made Todd’s reasoning for sharing this information very shallow and took away from the personal effect of the piece. Todd states at the end, “While it may seem crass to have students think about avoiding litigation rather than injury, remember the point of such exercises is to increase legal literacy” (p. 418).

 

Although I understand Todd’s reasoning, I don’t think teaching students to avoid litigation rather than injury is the message to be sending. This message is what creates greedy and manipulative individuals. As a technical writer, your purpose is to help others by communicating information effectively for their own personal use; it is not to value legal safety over the common good. I think instead, promoting the idea of reducing injury will, therefore, reduce the number of litigations.

 

Finally, I do agree with Todd’s statement that technical communicators need to be up to date with current laws and understand the written language behind them. This is an aspect of education I would find extremely beneficial as a technical writing major. Understanding the law allows writers to properly understand how to write in order to avoid a problem and gives the author purpose for writing something in the first place.  

 

References:

 

Todd, J. “Avoiding Litigation for Product Instructions and Warnings.” Journal of Technical Writing and Communication, Vol. 44 (4): 401-421. 2014. September 22, 2016.