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Guidelines for Drafting Liability Neutral Transportation Engineering Documents and Communication Strategies (2020)

Chapter: V. RECOMMENDATIONS FOR LIABILITY NEUTRAL DOCUMENTS AND COMMUNICATION STRATEGIES

« Previous: IV. MEDIA TRAINING
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Suggested Citation:"V. RECOMMENDATIONS FOR LIABILITY NEUTRAL DOCUMENTS AND COMMUNICATION STRATEGIES." National Academies of Sciences, Engineering, and Medicine. 2020. Guidelines for Drafting Liability Neutral Transportation Engineering Documents and Communication Strategies. Washington, DC: The National Academies Press. doi: 10.17226/25894.
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Page 21

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NCHRP LRD 83 21 5. Do not answer a question that is not clear. Ask for a clarification, or for the question to be reworded. Do not guess. Tell the reporter that information will be provid- ed later if necessary. 6. Practice in front of a mirror and with friends, family, or colleagues. 7. Dress appropriately for the context of the interview. The appropriate attire for a construction zone, a public meet- ing, and a television interview varies considerably. 8. If a statement has been made by the reporter that is false or misleading, address it. Otherwise, remaining quiet may send the message that you agree with the state- ment. Beware of statements that are mostly true or cor- rect, yet contain an error or falsehood. A phrase such as “before we change subjects, please let me clarify” can be used to redirect the conversation. 9. Take a breath. Don’t rush to answer a question, espe- cially if it is a difficult one. With some practice, experi- enced speakers are able to control the message and the interview. 10. Ask for help. Media training classes and workshops are available all around the country. DOT community out- reach staff can also provide training and assistance. V. RECOMMENDATIONS FOR LIABILITY NEUTRAL DOCUMENTS AND COMMUNICATION STRATEGIES The recommendations of the research panel are summarized below. A. Choose Each Word Carefully The intent of this publication is to encourage the use of liabil- ity neutral language in safety studies, research papers and DOT policies and manuals. There are times that the words “should” or “shall” are the only words that can convey the importance of the recommendation. These words should not be eliminated from the text of any policy, manual or research study if the rec- ommendation is necessary for the safe operation of the road- way and there is no room for engineering judgment. As noted in Section III, the following list of words is comprehensive but does not include all the words that can create unintended liabil- ity or responsibility for an agency: Better Insufficient Clearly Is needed Concern Mandatory Danger/Dangerous Obstacle Deficient Poor Edge/Shoulder Drop off Problem Ensure Require Essential Risk/Risky Excessive Shall If major changes are proposed to a policy, the agency should ask their counterparts in FHWA to review and comment on the proposed changes. In addition to the considerations outlined in the guidance for drafting tips outlined in the previous section, the following factors may be considered during the revision process: a. It may be easier to start over with a new policy rather than try to modify an existing policy. This is true when the policy requires major revisions. b. Although many of the recommendations in this report address the importance of neutral language, there are times that the words “should”, “shall” and “must” are appropriate. There are times that the words “should” or “shall” are the only words that can convey the impor- tance of the recommendation. These words should not be eliminated from the text of any policy, manual or re- search study if the recommendation is necessary for the safe operation of the roadway and there is no room for engineering judgment. c. When revising a policy, internal consistency must be maintained. For instance, a DOT may expect bicycles to be in use on all its highways and instruct its staff to plan for bicycle use on all roads in a technical memoran- dum relating to shoulder width standards. If the agency requires a 4-foot shoulder for bicycle use, it should not, in another portion of that technical memo, allow 2-foot shoulders on collector routes. IV. MEDIA TRAINING Media training is essential for any staff member who has the potential to be department spokesperson. Media training is rec- ommended for most middle and upper management positions. Basic guidelines for a successful media interview follow: 1. Prepare in advance. Find out the topics that will be cov- ered in the interview and know who will be conducting it and whether it is for print or television. Be able to provide factual information, such as statistics, dates, or dollars spent. 2. Identify the major points of discussion and plan to pres- ent accurate and timely information in an understand- able way. Use words that your audience will understand. Be prepared and plan different ways to convey the mes- sage. Memorize key points and be ready to explain them. 3. Plan the specific words that you intend to use. Spokes- people can be mis-quoted, and quotes can be taken out of context, but a well-prepared spokesperson can avoid a trap. 4. Provide the information that has been requested. Share information that is useful but be aware of the potential for disaster. Do not stray very far from message you in- tended to provide.

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In the legal system, transportation engineering documents drafted by the transportation industry include manuals, studies, research documents, memoranda, and email. These documents are frequently used by litigants and courts as evidence bearing on the standard of care or duties for transportation agencies sued for alleged negligence in operation of transportation facilities.

The TRB National Cooperative Highway Research Program's NCHRP Legal Research Digest 83: Guidelines for Drafting Liability Neutral Transportation Engineering Documents and Communication Strategies contains a writing guide for technical and non-technical authors and those employees who interact with the public and the media. This digest will assist authors in avoiding concepts and language that have legal implications by promoting clear, direct, objective, and fact-based expression.

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