At a law firm, each and every communication, internal and external, about an office matter (formal or otherwise) is discoverable. Whenever sending an email or a text message, treat it as if it will be shown to and read by a judge and jury.
The advent of the Internet and smartphones brought an explosion of electronic documentary evidence. Electronic communication is the transfer of data, messages, or information using digital devices and networks, including email, text messages, and phone calls.
When it comes to legal matters, electronic communications are considered documents. Even law firm employees are often surprised at the recoverability and admissibility of electronic documentary evidence. Electronic documentary evidence often trumps testimonial evidence, because although “the documents don’t lie” is not as true as it once was, the ability to read a communication in its original form is powerful.
Although texts are quick and convenient, you miss face-to-face interaction and nonverbal cues, which can lead to miscommunication. Not only may your message be misunderstood over text or email, but this could be used in court if the e-communication is later recovered and admissible in trial.
How can you avoid this?
Problems in Electronic Communication and How To Avoid Them
Electronic communication is convenient, but it comes with many obstacles. Here are a few common problems that arise when communicating electronically.
- Failed Attempts at Humor and Sarcasm
- Even if you think you are being funny, you cannot control how your statement will be perceived by your audience. You may appear callous or insensitive to others, despite good intentions. One person’s joke is another person’s insult.
- Emotional Communications
- If you convey your personal emotions about a legal matter, a judge and jury may perceive this as “unprofessional” and showing bias. This may invite a reader to draw conclusions about your character. For example, a reader may think that the communicator is “hysterical” or “a jerk.”
- Stepping Out of Your Area of Expertise
- When a writer steps outside of an area of expertise, he or she may introduce uninformed or incorrect statements to a conversation. Doing this could create internal inconsistencies, as well as confuse all parties involved, leading to further discussions and debates on the topic.
- Hyperbole for Motivation or Provoking a Reaction
- Using loaded words or phrases that may be seen as hostile or passive aggressive may be taken negatively by opposing counsel or a judge. Even if you did not mean for it to be perceived negatively, it may be difficult to explain your stance or recreate the context you intended. This situation could easily play into your opponents’ themes and narratives.
- Lack of Sensitivity or Irreverence
- Remember your immediate audience, as well as your unintended audience. Your immediate audience includes the people with whom you are communicating directly. Unintended audiences may be opposing counsel, a judge, or jury, or anyone else who may have access to your emails or text messages or drafts of communications.
- Picking Up the Phone
- Sometimes, it can be difficult to effectively communicate by email or text, especially regarding convoluted matters. Speaking on a telephone may prevent you from having to “cherry-pick” details from unnecessarily complex email chains. Do not forget that all agreements reached over a phone call require a letter or email confirmation.
The solution? Simply stay on topic and keep things professional.
Takeaways and Best Practices
It is easy to forget that electronic communications, in almost all settings, can be retrieved and recovered in discovery. It would be best to err on the side of caution and remain professional and on topic in all of your communications.
These are a few best practices for you to consider before you send your next electronic communication:
- Always assume that your communications may one day be public, whether it’s seen by someone you know or used in e-discovery in pretrial proceedings or a future trial.
- Treat your electronic communications like letters. Imagine that each time you hit “send,” you’re dropping your message into a post office box where you cannot retrieve it or change what you wrote.
- Take a second and pause before pressing “send.” Did you double check the email address? Did you do a spelling and grammar check? Use the extra minute to double check your message for errors, especially when it comes to work-related emails.
- Remember that you cannot always predict how your audience will react to humor.
When in doubt, keep it professional and keep it on topic.
