email

Ten Things: Ten Questions To Ask Yourself Before Hitting Send (Lessons From the Trenches)

I was cleaning out some old files in a filing cabinet (yes, that’s still a thing) and I came across some plastic cards we had made up when I was head of litigation at a large technology company many moons ago.  My team and I created the cards to help the business focus on key compliance issues, i.e., providing them cards with lists of easy-to-remember rules that could help keep them – and the company – out of trouble.  They were about the size of a business card (that may not be a thing anymore…)[1] and were laminated so they would last forever.[2]  And here in front of me were several different cards we had prepared close to twenty years ago.  They included tips on competition law compliance, how to report a violation of the company handbook, and (my personal favorite) how to write smart emails that won’t end up as Exhibit A at trial.  I remembered why we created these in the first place, especially the email card:  If you have ever lived through big litigation (or any litigation for that matter), you understand just how deadly a poorly drafted email can be.

And deadly is right.  I lived through several painful and protracted litigated disputes, and I can attest that emails (ours and theirs) were front and center, blowing up in faces like Wile E. Coyote-endorsed ACME product.  The only thing missing was a sign for free birdseed. There were lots of lessons learned by unfortunate executives (and yours truly).  Back then, I decided to take those lessons and create something useful to showcase basic rules to help the business – and the lawyers – write smarter emails (and other documents).  As I read through the card, I realized that I had forgotten some of the lessons.  And, yes, that failure has bitten me in the ass more than a few times.  So, I decided it would be a good idea to write them out here for you – and for me.  This edition of “Ten Things” sets out questions you should ask yourself about the email before you hit send:

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Ten Things: Slaying the Email Jabberwocky

’Twas brillig, and the slithy toves

Did gyre and gimble in the wabe:

All mimsy were the borogoves,

 And the mome raths outgrabe. 

“Jabberwocky” – Lewis Carroll

I am a fan of Monty Python’s Flying Circus.  So, instead of titling my article slaying the email “beast”- which would be the more conventional path – I am taking a slightly different road and reaching back to a movie from the 1970’s entitled “Jabberwocky” based on the poem by Lewis Carroll and featuring members of the Monty Python troupe.  If you have not seen the movie nor read the poem, do not fear.  No knowledge of either is required to understand this article (though you are missing out on some good laughs).  All you need to know is that the Jabberwocky monster is a terrifying beast that truly needs a serious butt-kicking.  Just like email.

My love/hate relationship with email goes way back.  Like many, once I had a taste of the email-crack, it became the main way I communicated at the office.  And like an invasive species, it quickly replaced written memos, letters, phone calls, and old fashion face-to-face chats.  I realize now this was all a big mistake as, over time, I found myself in a horror movie of my own making.  Like “The Blob,” email soon oozed into every part of my day along with many of my evenings and weekends.  Smart phones only increased its deadly, hypnotic power.  I knew I needed to get email under control and through a lot of trial and error I came across several great ideas and discovered a few of my own – all designed to take back the work day from email.  If you woke up today interested in getting out from under the tyranny of email, you’re in luck.  Grab a cup of coffee and settle in.  This edition of “Ten Things” shares some simple but highly effective ways you can control the amount of email you deal with on a daily basis:

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Ten Things: Time For a Conversation About Drafting Documents and Emails

As in-house counsel, you already know that poorly drafted documents, especially emails, can hurt your company, e.g., M&A deals can get derailed or litigation extended. You can find examples every day of “bad” emails being read in court. Labels like “confidential,” “company private,” “restricted,” and “proprietary” will not protect documents from being obtained through proper legal process.

Document requests in litigation or government investigations are broad, typically calling for correspondence, hand-written notes, agreements, drafts, email (email back-up tapes), sent files, deleted emails, calendars, spreadsheets, documents on tablets and smartphones, graphs, expense reports, voice mail, meeting agenda, calendar entries, copies of media articles, etc. Consequently, it’s important that your business colleagues understand the importance of properly prepared documents and emails (and the potential harm from not doing so).

Below are ten things you can use in your daily dealings and conversations with the business to help limit problems that can arise from poorly prepared documents. I have included some links to other resources as well.  A lot is focused on emails, but the rules apply to pretty much any written communication (including instant messages and recorded voicemails).  Feel free to cut and paste these into your own check-list or email (or however you best can get the word out at your company).

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