An article appearing in the current issue of Inside Counsel illustrates Rule #4 of my 12 Rules for Avoiding Smoking Guns: choosing and using communications wisely.

Indeed!  “What you don’t know about BlackBerrys could land you in court,” writes Adele Nicholas.  Apparently the 24/7 culture that PDAs, like BlackBerrys, have helped cultivate has now triggered a wave of overtime claims from non-exempt employees who do not fall under the Fair Labor Standards Act’s definition of executive, administrative, or professional worker.  Ironically, it is the electronic evidence of the PDA’s off-hours use that is being used to support the wage-and hour-claim.

In another example, Nicholas cites the case of a driver who ran a red light while on company business and crashed the company van into a vehicle piloted by a 70-year-old woman.  The woman went through multiple reconstructive surgeries to repair injuries sustained during the crash.  In the personal injury suit that followed it was discovered that the company driver was looking at his BlackBerry at the time of the accident. 

The PDA was a date stamped smoking gun. 

So beware of how you use your BlackBerry.  It’s convenience and portability can also be it’s Achilles heel.

For more information about how to avoid the creation of smoking guns and reduce unnecessary liability see chapter 6 of The Business Guide to Legal Literacy: What Every Manager Should Know About the Law (Jossey-Bass, 2006).

One of the most popular articles appearing earlier this week on the New York Times website was a story titled: Young Turn to Web Sites Without Rules.  “Popular Web sites like YouTube ande MySpace have hired the equivalent of school hallway monitors to police what visitors to their sites can see and do by cracking down on piracy and depictions of nudity and violence.” the articles starts off with.  So what is the alternative for the young, the rebellious, and the hormonally challenged you might ask?  It’s websites like Stickam where anything goes.  No fear and no rules.

It’s every parents’ nightmare.  So as they worried about the adequacy of the web filters of their computers back home the number of hits on the Times’ article increased, propelling it to the top of the Times’ e-mail charts.

Some young adults who grew-up with computers and a free-wheeling internet culture are learning the hard way how youthful indiscretions memorialized in virtual time and space can come back to haunt them years later.  Take for example the young woman applying for a job with a bank.  Human resources did an internet search on the candidate’s name and lo and behold a picture of the woman popped up on the screen dressed as a stripper at a Halloween party.  At the time the photo was taken it was probably funny and all her other friends were doing it too.  During a job interview, however, for a “real” job it was easily interpreted as an example of poor judgment.

Businesses can face the same problem as this young job candidate.  Every day employees create business documents that can be misinterpreted and create ammunition for trigger happy plaintiff’s lawyers.  They inadvertently create smoking guns.

Merck, for example, has reported that it is spending close to $1 million per day fighting the avalanche of lawsuits filed after the recall of its Vioxx painkiller.  As in all such cases, company documents written years ago are being paraded into court by patients who claimed they’ve been harmed by the product — the proverbial smoking gun.  In hindsight, there are undoubtedly some Merck employees who wish they had written things differently.

A key to keeping legal costs in check is therefore to turn hindsight into foresight.  If you can anticipate how a document can be used against you and your employer you can sidestep the problem.  You can decide how much legal risk you want to accept ahead of time.  You can eliminate predictable surprises.

How?  By following my 12 Rules for Avoiding Smoking Guns.  The rules are based on my observations of more than 25 years of legal practice.  They are 12 easy steps companies can start taking today to stop shooting themselves in the foot and start controlling their legal risk and legal cost.

Getting ahead of the legal risk management curve puts more money in you pocket by keeping legal cost increases from rising unnecessarily.