Depositions, Email Scandals, In-House Counsel, Litigators, Rank Stupidity, Screw-Ups

Inside Straight: Avoiding E-Mail Stupidity

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There’s one guy in your outfit who understands the need not to write stupid e-mails: That’s the guy who just spent all day in deposition being tortured with the stupid e-mails that he wrote three years ago.

That guy will control himself. He’ll write fewer and more carefully phrased e-mails for the next couple of weeks. Then he’ll go back to writing stupid stuff again, just like everyone else.

You can’t win this game; no matter what you say, people will revert to informality and write troublesome e-mails. But you’re not allowed to give up. What’s an in-house lawyer to do?

I propose three things.

First, prepare a program about responsible business communications. Deliver that presentation either in-person or over the web. And insist, to the extent that it’s within your power, that all employees participate.

During that program, scare the bejesus out of your colleagues. Show (or describe) examples of horrifying e-mails to illustrate precisely how careless e-mails can come back to haunt you. To make your point, use examples of bad e-mails drawn from either the public domain or your company’s own closed case files.

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If you decide to use examples from the public domain, you might rely on a couple of old classics. Don’t overlook the employee of a pharmaceutical company, under siege for selling a diet drug that allegedly caused heart and lung problems, who wrote in an e-mail: “Can I look forward to my waning years signing checks for fat people who are a little afraid of a silly lung problem?”

Or use the example of the large software company accused under the antitrust laws of using its dominance in operating systems to influence the personal computer market. The CEO was presumably not pleased to be shown at deposition the e-mail he received from one of his colleagues: I “strongly believe we need a WW [worldwide] hit team to attack [a personal computer company] as a large account, whereby the relationship should be used to apply some pressure.”

If you’d like to personalize your presentation a little more, cull stupid e-mails from your own company’s closed cases. Employees may be shocked when they see that their own co-workers have written remarkably silly things in the context of your own business. (If you choose to do this, remember that you may some day have a fight over whether the slides used in your “responsible business communications” program are discoverable. Be sensitive to this.)

Either way, the idea is to scare your people straight: Show them examples of bad e-mails, and hope that the message will sink in.

It won’t.

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So repeat the message in writing. That’s my second suggestion: A month or two after each employee attends the program about responsible business communications, send an e-mail reminding people what they learned. Among other things, you might note:

1. E-mails and instant messages are documents. They may be discoverable in litigation. And even if they’re deleted, it’s likely that they can be recovered.

2. E-mails are great for communicating factual information. But they’re terrible for discussing sensitive or highly charged issues. That’s why God created telephones. Avoid informality in e-mails, and remember that the things that you think are funny today may not seem funny to a jury five years from now.

3. Remember the New York Times rule: Assume that any e-mail you send will appear tomorrow on the front page of the Times. If you would be embarrassed to see your e-mail published in the Times, don’t press “send.”

4. If true, remind employees that they have no privacy rights in e-mails sent on corporate computers. Remind people (if true) that employees have been terminated for improper use of corporate e-mail systems. (I’m not trying to be draconian here, but saying these things may spook people into thinking that Big Brother really is watching them, which might prompt more responsible communications.)

Finally, my third suggestion: Re-send the written reminder about responsible communications at regular intervals. It’s hard to cause people to heed advice about e-mail communications, but you can take all reasonable steps to try. Although most folks will delete your routine reminders without reading them, at least you did your best.

Two closing thoughts:

First, if you work in an international business, have a conversation with your colleagues who work in the law department outside of the United States. Remind them that the status of the attorney-client privilege is uncertain in many other countries, so lawyers working abroad should assume that their e-mail communications with you will be discoverable. If something is truly sensitive, don’t discuss it in an e-mail, even between lawyers.

Finally, lawyers working at law firms shouldn’t sit there feeling so smug. Lawyers at firms are surely sending stupid e-mails at roughly the same rate as non-lawyer corporate employees. But those lawyers are not taken to task unless the law firm is sued in a case that makes the silly e-mail relevant and discoverable. As litigators, we spend our days wallowing in other folks’ silly e-mails, and even then we can’t resist writing boneheaded things ourselves.

You can’t win the fight against stupid e-mails. You can’t tie. And you can’t get out of the game. All you can do is your level best to try to minimize the number of unhelpful e-mails circulated within your business.

Mark Herrmann is the Vice President and Chief Counsel – Litigation at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law (affiliate link). You can reach him by email at inhouse@abovethelaw.com.

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