Emails, Reports and Written Electronic Communication
An important side effect of the continuing explosion in digital communications is that company email correspondence and a slew of other written documents are being exhibited more and more often as evidence in legal prosecutions. These documents are used efficiently–and sometimes deviously–by prosecuting attorneys to undermine a person’s or a company’s credibility, to establish wrongdoing or to violate a defense.
We’re responsible for the quality and efficacy of these things we write and disperse. Any written medium is fair game in a court, such as instant messages, Internet mail, text messages, social networking, and sales force call notes. Email, letters, memos and faxes are permanent records which are virtually impossible to erase.
As you create, distribute and store written business communications, keep in mind that, as well as your intended viewers, your audience may become a national agency, the general public, or the participants in a legal proceeding.
Consider the sheer variety of presentations, agendas, job plans etc that all of us share and stockpile in the course of our everyday work, all which can be inspected in case of litigation. Even hand-written notes scrawled in the margins of records are fully discoverable records, even though they might be little more than 1 person’s spontaneous thoughts at a certain time, instead of real evidence of our company’s policy or doctrine, for example.
We must strive to decrease the amount of unnecessary or cloudy emails we send, because they waste time, damage credibility and may also produce a legal risk. Bear in mind that voice mails, telephone calls and face-to-face conversations aren’t records. As opposed to automatically circulating an email, first consider if the data might better be discussed in non-written form. Ask yourself: Is this email necessary, or could the data exchange be managed in a telephone call or an in-person assembly?
Communication Do’s and Don’ts
- Don’t transcribe voice mail messages, because doing so creates a written document.
- Discard handwritten notes, unless they’ve been put under a “legal hold.”
- In the instance of a legal hold, don’t destroy any documents. Save all records related to expected or actual litigation.
- Don’t modify documents, despite the best of intentions.
- Confine your email distribution list to people who have a “need to know.” The issue with cc’ing senior executives is it’s presumed they’ve read the record, which puts an additional burden on them.
- Delete rough drafts once a job is finished. These drafts can later be admissible as evidence, even if they bear little resemblance to the last version. Lawyers may give greater weight to monitored edits than to other parts of the document. Thus, it’s necessary to save only the last version. Go in the document to find out whether changes by different reviewers are preserved. In that case, take all changes and save the blank document.
- Finally, remove long strings of back-and-forth emails sent to each member of a group. Do not forget that even if the tone of these exchanges is casual, the mails become part of a permanent record
How to Create Excellent Documents
When writing any business document, your aim should be to advance a legitimate company outcome. What do you want the reader to do as a result of reading your communication? What do you want the reader to think, feel or conclude? Both of these components–the actions and the response–make the reader up outcome, which you need to clearly define for each writing project.
Before you sit down to write, it’s helpful to make some notes. What are the key ideas that you need to convey to realize your reader outcome? What points encourage each of the key ideas?
Pay attention to the tone or tenor of your communications. Becoming aware of how you communicate can help prevent misinterpretation. Qualities of email correspondence to avoid include strong or inflammatory language (which suggests fault or error on someone’s part); blame; innuendo; sarcasm; exaggeration or overstatement; attributing certain comments or motives to other people; talking on a subject without having all of the facts; commenting on areas which are outside of your area of experience or domain of responsibility; participating rumor or speculation; violating individual privacy; and “grandstanding.”
Think about who wants to read the record. Have you added individuals on the supply only to impress them, or to “just in case” you have to demonstrate what you’ve accomplished at any time in the future?
Last but not least, before you hit “send,” carefully reread your document to check for ambiguous statements or inappropriate or potentially offensive language or tone. Have you kept your focus on a real business result? Work to make sure that if your record were to become a part of a legal procedure, it would give no ammunition to an adversary of our firm.