Originally printed in Bay Window Magazine, Feb. 2019.
In this age of technology and rapid communication, the devil can be in the details. In litigation, lawyers are tasked to look at a fact pattern that occurred in the past, and then to use those facts to present a case that puts their clients in the best light possible. Today’s communications make that task simultaneously easier and harder as we are often in constant contact with people we coexist with. I am not immune to this pattern as I have taken to using text messaging to communicate with clients, and Slack to communicate with my coworkers. However, when digging through boxes of contracts, negotiations via email, and screenshots of text messages, I am often reminded of the lesson that my first law professor gave us on the first day of law school:
Never put anything in an email that you wouldn’t want to write on stationery and mail to the intended recipient.
In cases where the dispute regards the negotiation of a contract, the conduct of an employee, or the failure of a customer to pay for services rendered, the way that the parties communicated is key. Certain innocuous text messages seem more sinister when printed out on paper, and in our haste to respond as quickly as possible, there is a greater chance for a misunderstanding that could eventually lead to involving a lawyer.
As the amount of time we spend speaking face-to-face or over the phone decreases, the amount of time that we stare at screens and use touchpads or keyboards to communicate increases; so too do the number of disconnects and miscommunications. I typically try to call clients to discuss case matters, but recently I had a client who insisted that email was the best method. Early on, I realized this would be a problem when he began sending multiple emails, and did not read my replies prior to sending more emails. The bigger problem, however, was with his ongoing emails with the party that he had hired me to sue.
Most of the time, clients will ask whether they should send a particular communication to the other side prior to doing so, but this particular client continued going about his business without regard for the litigation that we had filed. I think he finally got the point when a particularly inflammatory email was printed out and placed in front of him at his deposition. Luckily, we didn’t need to explain the curse- and derogatory word-laden message to a jury in that case.
As opposed to when we pick up the phone to call someone, written communications do not allow for the context of voice intonation, and they leave a paper trail of simple information that in the past would have only been communicated verbally. The use of sarcasm, while readily identifiable in person or over the phone, is completely lost when employed in text messages or emails.
Now, we are even seeing the next generation of this problem in litigation. Facebook messages, Tweets, and other forms of social media are being used for a variety of purposes in court. In New York, a judge even ruled that telling someone involved in a family matter about a hearing on Facebook, when it was shown that that person had posted on Facebook later that day, constituted proper service, where typically the notice would need to have been hand-delivered.
The push to become more “connected” along with a decline in vocal communications actually makes us more disconnected from each other. Why go to a community town hall meeting when you can hear the same ranting and raving typed out on the Nextdoor app? Why attend a lecture in person when the presenter is going to post the information as a webinar the next day? Even religious services are being posted online in an effort to make information more accessible.
In business, a handshake agreement used to be enough for almost every industry. We lawyers used to complain that when those handshake deals had a problem, there was no documentation about what the two parties actually intended to agree to. However, now, there is so much information, so many simultaneous emails and text messages, that a detailed timeline is required just to determine who sent what to whom and when.
So, the next time that you think that it would be easier to email your contractor or text your partner sitting in the next room rather than simply picking up the phone and calling or speaking with them in person, heed the advice of my law school professor, and consider whether you really want to have a paper trail of what you are about to say.