Email has drastically impacted the way we communicate. It is faster and less expensive than facsimile or ordinary mail, and can reduce the amount of paper and files that frequently fill an office. Furthermore, the increased use of smartphones allows for the instantaneous exchange of information and documents from virtually any location, at any time. However, while email certainly has its benefits, it also has its inherent dangers and pitfalls, particularly in the context of litigation.
Because the use of email is so frequent and a preferred informal method of conversation, it has become a fertile source of damaging and/or useful (depending of course on what side you are on) evidence. Indeed, a controversial email can irreparably destroy a witness' credibility or compromise a company's case.
The domain name on your email address (i.e., @ABCcompany.com) may also give the impression that your comments are representative of the company. As such, every employee should understand and appreciate that virtually every email written may be discoverable in future litigation, and used against your company. To avoid these problems, there are several rules to consider when drafting an email, regardless of whether the email is sent to a third party or simply to the co-worker in the office next door.
Never write something you would be embarrassed to read to your mother or boss
If your case goes to trial, the email you are writing may be displayed on a projector and read to a jury of 12 individuals whom you have never met. More importantly, the email will likely be taken out of context by the opposing party. Regardless of what you meant at the time you wrote it, or how appropriate or amusing it was at the time you wrote it, there is nothing more embarrassing or harmful to a case than an inappropriate email. As such, refrain from writing disparaging comments about individuals, questionable humor, or intimate personal details of your life.
Before you click send, ask yourself, “Would I be embarrassed to read this email to my mother or boss?” If the answer is “yes,” you should reconsider sending the email.
Pay attention to grammar
Email has become so informal that authors regularly disregard punctuation and grammar. For example, authors use abbreviations such as “r” in lieu of “are.” The use of abbreviations can lead to confusion or ambiguities when read or interpreted by others. Further, emails with no stops or commas are difficult to read and can sometimes even change the meaning of the text.
Furthermore, cases consistently hinge on credibility and professionalism. An email using proper syntax, punctuation, spelling, and language is much more credible and effective than one that uses trendy abbreviations and lacks proper punctuation. Your email may be a crucial piece of evidence in a lawsuit; treat each email as a stand-alone document that is demonstrative of professionalism and intellect.
Refrain from using profanity
The use of foul language in emails can offend either the recipients of the emails or a jury who is asked to consider the same in litigation. There is always a more appropriate word to use in lieu of profanity; consider the use of alternatives when sending emails. Similarly, do not include sexually suggestive language, jokes, or attachments.
Understand the attorney-client privilege
The use of email also plays an important role in the context of establishing or maintaining the attorney-client privilege. However, in the context of emails, it must be understood that not all communications directed to a lawyer will be considered an attorney-client communication protected from disclosure.
Many people have the incorrect assumption that simply copying a lawyer on an email will protect an otherwise non-privileged email from disclosure; this is not always true. Rather, under the “dominant purpose” test, a communication will only be protected if the dominant purpose of the email was for the solicitation or provision of legal advice. If the only reason you are copying your lawyer on an email is an effort to keep that email private, you should reconsider sending the email.
The attorney/client privilege can also be compromised or waived when information that would have otherwise been privileged is disclosed to a third party. One of the biggest dangers is when an email is inadvertently forwarded to a third party as part of an email chain. Never forward any emails to third parties that include in the email string either a direct communication between you and your lawyers, or which discuss the substance of any direct communications or advice from your lawyers. Even if a court ultimately finds the disclosure was inadvertent and does not waive the attorney-client privilege, and further requires the email be returned or destroyed by the unintended recipient, you cannot “unring the bell” if that party has already read the confidential communication.
Because the use of email is so frequent and a preferred informal method of conversation, it has become a fertile source of damaging and/or useful (depending of course on what side you are on) evidence. Indeed, a controversial email can irreparably destroy a witness' credibility or compromise a company's case.
The domain name on your email address (i.e., @ABCcompany.com) may also give the impression that your comments are representative of the company. As such, every employee should understand and appreciate that virtually every email written may be discoverable in future litigation, and used against your company. To avoid these problems, there are several rules to consider when drafting an email, regardless of whether the email is sent to a third party or simply to the co-worker in the office next door.
Never write something you would be embarrassed to read to your mother or boss
If your case goes to trial, the email you are writing may be displayed on a projector and read to a jury of 12 individuals whom you have never met. More importantly, the email will likely be taken out of context by the opposing party. Regardless of what you meant at the time you wrote it, or how appropriate or amusing it was at the time you wrote it, there is nothing more embarrassing or harmful to a case than an inappropriate email. As such, refrain from writing disparaging comments about individuals, questionable humor, or intimate personal details of your life.
Before you click send, ask yourself, “Would I be embarrassed to read this email to my mother or boss?” If the answer is “yes,” you should reconsider sending the email.
Pay attention to grammar
Email has become so informal that authors regularly disregard punctuation and grammar. For example, authors use abbreviations such as “r” in lieu of “are.” The use of abbreviations can lead to confusion or ambiguities when read or interpreted by others. Further, emails with no stops or commas are difficult to read and can sometimes even change the meaning of the text.
Furthermore, cases consistently hinge on credibility and professionalism. An email using proper syntax, punctuation, spelling, and language is much more credible and effective than one that uses trendy abbreviations and lacks proper punctuation. Your email may be a crucial piece of evidence in a lawsuit; treat each email as a stand-alone document that is demonstrative of professionalism and intellect.
Refrain from using profanity
The use of foul language in emails can offend either the recipients of the emails or a jury who is asked to consider the same in litigation. There is always a more appropriate word to use in lieu of profanity; consider the use of alternatives when sending emails. Similarly, do not include sexually suggestive language, jokes, or attachments.
Understand the attorney-client privilege
The use of email also plays an important role in the context of establishing or maintaining the attorney-client privilege. However, in the context of emails, it must be understood that not all communications directed to a lawyer will be considered an attorney-client communication protected from disclosure.
Many people have the incorrect assumption that simply copying a lawyer on an email will protect an otherwise non-privileged email from disclosure; this is not always true. Rather, under the “dominant purpose” test, a communication will only be protected if the dominant purpose of the email was for the solicitation or provision of legal advice. If the only reason you are copying your lawyer on an email is an effort to keep that email private, you should reconsider sending the email.
The attorney/client privilege can also be compromised or waived when information that would have otherwise been privileged is disclosed to a third party. One of the biggest dangers is when an email is inadvertently forwarded to a third party as part of an email chain. Never forward any emails to third parties that include in the email string either a direct communication between you and your lawyers, or which discuss the substance of any direct communications or advice from your lawyers. Even if a court ultimately finds the disclosure was inadvertent and does not waive the attorney-client privilege, and further requires the email be returned or destroyed by the unintended recipient, you cannot “unring the bell” if that party has already read the confidential communication.