Email Etiquette For Lawyers – Beware Of The Send Button
Make sure you are comfortable with the content of your email being shared with the world before you click "send."
Stop and make sure that you are comfortable with the content of your email being shared with the world before you click that send button. It may actually happen.
I’ve discussed email before in the context of effective communication (see here and here), but there are certain rules to adhere to in every single email before clicking that send button. Make sure that you are comfortable with the content being put before a judge or the rest of the world; proofread or have someone do it for you (or, ideally, both); and find a structure that works for you and stick to it.
The New York Times Rule
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We have a rule at our firm to never send an email that you wouldn’t want on the front page of the New York Times or as a court exhibit. I am not talking about not sharing privileged information, discussing weaknesses of a case, and the like, but about the language being presented in a professional, well-worded manner that would not cause the author any embarrassment, no matter who reads it.
The first thing that comes to mind when I think of this rule is absence of profanities. Since we often write as we speak, and since at least some of us use profanities in our everyday parlance (mine tends to correspond with how recently I watched an episode of Deadwood or The Sopranos), this is not really a gimme, but it is also not all that difficult. If you think you f**ked something up and really want to share that by email, there are plenty of synonyms that will pass the message across just as well.
Another issue that I frequently see come up in emails is the poor use of humor. One should generally stay away from trying to insert humor into emails, or at least use it sparingly. In written form, jokes can come off as awkward or even insulting when read out of context, which is how an email could foreseeably be read. It is particularly tempting to respond to a joke when you get one in an email, but, to the extent possible, it is best to avoid it. You’re not as funny as you think you are, and it will look even less funny out of context.
This may be more of a personal pet peeve, but don’t criticize or mock people in emails. Sometimes you read a motion or see something that another lawyer did and you think to yourself, what an idiot. Just leave it at that. A recent example of how even a very innocent comment about someone else can be misconstrued in public was during the Deflategate saga, when documents containing emails from Tom Brady (my hero and the love of my life) to his childhood friend about Peyton Manning became public. One email read: “I’ve got another 7 or 8 years. He has 2. That’s the final chapter.” Media would have had a day with it if Brady used even remotely different language.
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Ask yourself before sending an email: am I comfortable with this being printed on the front page of the New York Times? If you are not, rewrite it until you are.
Keep the syntax, grammar, and spelling in check
During my first semester of law school, I had a professor who, while he generally encouraged email correspondence, would make sure to let you know if there was anything in your email that was not grammatically perfect. I am pretty sure that he refused to respond to emails that were grammatically incorrect. As a non-native speaker, I remember stressing out every step of the way if I wanted to send him an email, a process that usually ended by just deciding to not click the send button and trying to figure things out on my own. Not taking the time to proofread an email before sending it is disrespectful to the recipient, the professor insisted. Well, the point he was making really resonated with me.
I know that everyone’s time during the day is limited, and there are days when we send more than a hundred emails (I checked to make sure this is accurate as I was typing it — it is), but it does not take that much longer to look over an email before sending it or, even better, have someone else read it. I routinely ask my colleagues to read any substantive email before sending it to the court, the client, adversaries, or whomever else. Indeed, I do this even more so when I am really busy, since that is when I trust myself the least to catch errors in my own writing. I am sure no one ever rolls their eyes when I ask them to “come by and take a quick look at an email I am about to send.”
Structure the Email Correctly
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Email structures inevitably vary from person to person and they rightfully should, but there are certain general structural rules that can improve the email aesthetics. It took me some time to get used to the basic email formatting that we use at the firm, which, while not required, is strongly encouraged. Once I became accustomed to it, however, that was the exclusive way I would structure any email, whether it be for work or to friends for brunch or basketball planning purposes.
It is quite simple: start every email with a salutation including the recipient or the addressee’s name, insert the content below it, and end with a valediction/sign-off. Here is an example, because actually describing it felt really awkward:
David:
I agree.
Thank you,
Stefan
It clearly designates who the message is intended for and who the author is in the body of the message. Sure, the actual “to” and “from” fields sufficiently provide this information too, but in long email chains, having the above format makes it significantly easier for the audience to follow the exchange. If nothing else, it really helps when you need to go back and review emails from the early stages of a years-long case, and it certainly makes for better court exhibits.
With email becoming the main mode of communication, it can be difficult to avoid the tendency to email using the informalities of everyday talk (not to be confused with “locker-room talk” and other “boys being boys” language, which is equally as undesirable in emails as it is in speaking). Make sure that you are comfortable with the content of your emails should they make their way to the public eye.
Stefan Savic was an attorney at Balestriere Fariello, a trial and investigations law firm which represents clients in all aspects of complex commercial litigation and arbitration from pre-filing investigations to trial and appeals. You can reach firm partner John Balestriere at [email protected].
