I was feeling rather smug, having ordered a children’s product and shipped it home in advance of visiting my parents with my four year old. But as I was congratulating myself on advanced planning, I received a series of emails from my parents. The product required some assembly, and the instructions appeared to be incorrect. I confess my initial reaction was concern – perhaps my parents were losing mental dexterity earlier than expected? But more emails followed, explaining that the company’s customer service center had told my parents that, yes, the instructions were incorrect and revised instructions were in the works. With some phone guidance, the product was finally assembled. My parents were understandably frustrated by the whole experience.  So much for advanced planning!

While at first blush this scenario sounds like a customer service issue, it could also have real legal implications. First, customer misuse, including incorrect assembly, can be an important defense in some product liability litigation. If a company’s own instructions result in incorrect assembly, such a defense would be difficult to establish. Second, the customer service representatives freely told callers that the instructions were in error and revisions were planned. In so doing, the company is on record that it is aware of the mistake, but that it is correcting only on a going forward basis, rather than in a proactive manner – my parents were not told that replacement instructions or stickering were on their way, only that the company had plans to change for future product. This approach might be ok in some circumstances, but as this particular product happened to have a safety-related use, the company’s going forward approach as well as the front line call center’s rather cavalier explanation sounds like easy plaintiffs’ attorney fodder were a child ever to be injured while using the product. Third, without knowing if it occurred here, my experience-based guess would be that my parents’ call was logged solely as a customer service issue, never to be brought to the awareness of in-house or outside counsel unless the unlucky day arises where a serious injury or defect necessitates a closer look.

Individual customer service complaints and issues are often just that, but customer service patterns are sometimes the early warning of a more serious concern with a product’s design, manufacturing or instructions. As outside counsel, we too often see instances where the lack of communication between customer service and legal, or the absence of an effective “mouse trap” to catch patterns or concerns occurring on the customer service front lines result in missed opportunities to fend off problems early.

To save legal expense (and help customers like my exasperated parents), it is better to get the instructions right.