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Liability for manual- no substitute for a good lawyer (long)
Subject:Liability for manual- no substitute for a good lawyer (long) From:DURL <durl -at- BUFFNET -dot- NET> Date:Fri, 14 Nov 1997 21:18:38 -0500
Hi--
We had a lawyer make a presentation to our STC chapter on Wed
regarding tech writers' liability. If my memory serves, his take went
something like this:
For you to *be* liable, five conditions have to exist:
1 - you had a duty to perform your job "with due
diligence" according to
generally-accepted standards of your peers in your area
2 - you goofed, innocently or not
3 - damages occurred (property and/or injury)
4 - there were no intervening variables (ex: the foreman didn't
tell the injured worker, "Ignore the manual")
5 - a "reasonable person" could have foreseen the
possibility of damage and taken action to avoid it
His take is that we have this "duty" to two parties: the party who
pays us, and the party who reads our work. In his analysis, audience is
key--knowing who we're writing to.
He sees the tech writer vs the subject matter expert distinction
as, well, essentially not a distinction. He didn't see that our being
"just the tech writer" necessarily freed us from providing an error in the
subject
matter.
He felt that two groups of tech writers are perhaps likely to be
held to a "higher standard of [professional] care"--tech writers with
certifications (!!!) or qualifications such as degrees; and writers who
claim to be specialists in a particular field. So if you're a tech writer
with a BS in tech writing who specializes in nuclear reactor manuals, you
may be expected to provide a higher standard of care than a generic,
non-specialized tech writer. He suggested that one can say "35% of my
clients are nuclear reactor owners" rather than advertising oneself as a
nuclear reactor tech writing
specialist. (I'm talking funny, aren't I--it's contagious <g>)
He went on to say that having a contract supersedes all this stuff
(assuming, of course, that the contract in fact is worded to do just
that). Essentially, he said we should have an indemnification/hold
harmless clause in our contracts as far as subject matter goes. Even as
direct employees, our employers
(according to him) can come after us if we don't have an employment
contract
indemnifying us from any losses that our employer or the employer's
clients incur. This doesn't happen in real life, but there is no legal
reason why it can't.
He didn't seem to think that SME signoffs guaranteed much of
anything, nor did those disclaimers in the front of manuals.
On a brighter note, he seemed to suggest that we should get paid
twice for our work, at least legal-theory-wise (copyright stuff now): once
for *writing* it, and once for *selling* it.
Note: I didn't say any of this and anybody who read it did so at
their own risk and an alien has taken over my keyboard....
Mary
Mary Durlak Erie Documentation Inc.
East Aurora, New York (near Buffalo)
durl -at- buffnet -dot- net
