Geoff Hart (fwd): Spurious lawsuits and techwhirlers

Subject: Geoff Hart (fwd): Spurious lawsuits and techwhirlers
From: Ben Kovitz <apteryx -at- CHISP -dot- NET>
Date: Tue, 9 Mar 1999 13:03:12 -0700

From: "Geoffrey Hart" <Geoff-h -at- mtl -dot- feric -dot- ca>
Organization: feric
To: geoff-techwhirl -at- raycomm -dot- com
Date: Tue, 9 Mar 1999 08:48:39 -0500
MIME-Version: 1.0
Subject: Spurious lawsuits and techwhirlers
Reply-to: Geoff-h -at- mtl -dot- feric -dot- ca
CC: apteryx -at- CHISP -dot- NET
Priority: normal

Missed the start of this thread, but if I've got the attributions right,
Matt Ion remarked: <<the woman who spilled the McDonalds
coffee in her lap, sued the restaurant claiming it was "too
hot", and won a large settlement. Golly, coffee that's hot?
What will they think of next? And yet many coffee shops
(Starbucks, for example) now have printed warnings on their

I'm not a lawyer, and I can't cite chapter and verse to document
what I'm about to say, but the McDonald's case is a good bad
example. We discussed this on copyediting-l a few years back,
and it turns out the problem was not that the coffee was hot, but
rather that McDonald's had repeatedly ignored court warnings to
reduce the temperature to which they heated the water (apparently
in an effort to extract every last microgram of caffeine from the
ground beans); well-made coffee is definitely hot enough to burn
you, but it won't scald you as badly as the overheated stuff, and
that was the reason for the punitive damages. Starbucks' warning
is an overreaction and a misunderstanding of the facts. <Fe> A
simpler solution would have been to ask each employee to hand
over the coffee with a wince and a muttered "Ouch! Careful, it's
hot". Of course, that would mean the techwhirlers at Starbucks
would be out of work, so I suppose we can be glad they opted for
the written warning.</Fe> Hang in there; there _is_ a real
techwhirler tie-in further down the message.

Ben Kovitz responded <<The news media, however, does not
report on the millions of sensible decisions that get made in
the legal system each year.>>

Very true. Nonetheless, if yours is the company nailed with a
$10 million damages bill because you didn't have your
warnings in order, the overall justice of the system ("justice
system" is my favorite oxymoron) doesn't take much of the
sting out of the result. Again, speaking as a layman not a
lawyer, there appear to be two main causes for the American
reputation for spurious lawsuits. First, the culture of North
America is one of victimhood and denial of personal
responsibility, and this can't help but be reflected in the
courts. Second, any trial involving a jury relies as much on
manipulating the emotions of the jury as on a careful
consideration of well-presented and well-documented facts.
Taken together, these factors suggest that it's amazing the
system works "right" as often as it does.

<<The second reason is that lawyers have considerable
financial interest in scaring the bejeezus out of people with
deep pockets.>>

Furthermore, in the U.S. at least, lawyers can work on
commission, with no payment up front. So there's an
almighty incentive to go for the big bucks rather than merely
settling for a reasonable amount. Unlike Ben, I'm much more
inclined to bash lawyers. I know several who are reasonably
decent human beings, but all that changes when they don
their courtroom garb; I've never met one who believed in
having an equal responsibility to society and to the client. It
frankly scares me that the legal system no longer understands
its social role. That's a big oversimplification, and off-topic,
but there you have it.

I promised a techwhirler tie-in, and here it is: I've just done a
sketchy audience analysis over the past few paragraphs, and
with that analysis in hand, you can understand some of what
you need to do to meet the audience's needs as well as those
of your employer. As a technical writer, you must be keenly
aware that your products will be used within this societal
context: people don't expect to have to take their own
precautions, and courts expect to nail you for big damages if
you don't account for this fact. As a result, to protect both
your audience and your client or employer, you have no
choice other than to err on the side of caution. Where there
are any possibilities whatsoever of harm to the users of your
product, you must point these possibilities out to the
designers and document your efforts to have the problem
fixed; the corporate legal people can sometimes be your allies
in this. Where you can't get something changed, you must
document that you tried, and then make sure the problem is
clearly identified in the documentation. If there's a way
someone can get hurt, you need to discover it yourself,
ideally not hurting yourself in the process, document your
research for your files, and write documentation that
explicitly and rigorously guides users away from that
dangerous path. In the end, "good faith efforts" still count for
something in court, and your product and internal
documentation is your only proof that you made these efforts.

--Geoff Hart @8^{)} Pointe-Claire, Quebec
geoff-h -at- mtl -dot- feric -dot- ca

"Patience comes to those who wait."--Anon.

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