E-Mail Pitfalls and Opportunities

I am impatient. I do not understand the lawyer who will dictate a formal letter, scan it, and fax it, or, God Forbid, “snail-mail” it!  I still send letters, but I prefer a quick note, or even a substantive communication, typed in short, numbered, paragraphs, in the moment, and sent on its way. There are risks and benefits to such an approach.

Here are some:
1. Remember how your Mom taught you to “count to ten” when you are provoked before speaking? Great ideas I read biographies of great men who dictate or write an angry letter, only to file it away, never sent. My best advice is show restraint but have some guts. Innovation, decisiveness, and clear writing are three things I use to represent my clients well.
2. I have provoked anger and misunderstanding with a hastily fired off e-mail. A smiley face or frown icon is not enough. And, remember, the recipient may be reading your note on a 3 inch screen!
3. Thus, I try to breath deeply 2-3 times, spell check, and his “send” only when the benefit outweighs the risk.
4. Beware the dreaded “auto-fil”. Outlook may guess wrong, and you’ve sent a confidential e-mail to the wrong person. A polite request please to delete, and delete from the refuse bin invariably gets a positive response. But, the risk is very real.
5.Be aware who the other party copied. ALWAYS remember to declare it “confidential” in your “signature”. I once got an e-mail from an ally about a mistake opposing counsel had made. After making a “flip” remark about how dumb he was, I was startled to see that our opponent was on the receiving end of it. It colored the rest of our relationship in spite of a sincere apology.
6. If you “blind copy” your client or third party, remember that person may “reply all”, to your embarrassment or worse. Remember to warn your clients not to do this.
7. E-mails promote candor, but we sometimes have a false expectation of privacy. Counsel can sometimes speak very candidly to one another, assuming the other counsel will be a bit discrete. We are not robots, and sometimes, venting or even anger, arises. But, in the context of e-mail, always be aware that your recipient can “forward”. A few lawyers simply have a rule that all such communication is forwarded or blind-copied to their client. Oh how I would love to get back 3-4 such e-mails.
8. Yet, I receive and send thousands of e-mails. Some days, when a client is in crisis, we can go back and forth a dozen times. But, I am a family law, personal injury, and civil trial attorney.
9. My advice is do not set your e-mail to say, “I am out of the office and will be back Tuesday.” Clients have learned to expect more of you. They hired you, you hope, because they heard that you care about them. Be accessible. Answer as soon as you can even on week-ends and vacations.
10. I copy my staff in my e-mails. The paralegal in charge, our time clerk, and our billing and office manager. All must know what’s going on. To reduce clutter, I often blind copy the latter two.
11. I have a “Dear Client” letter for the client on the day they retain me. I explain that I bill for incoming e-mails (if asked to audit, I add the “sent” e-mails for completeness). I urge the client to save minor questions and send in a numbered format, one or two lines per items. I stress that conciseness is important, and long, rambling, e-mails are hard to absorb, hard to summarize for the court, and hard to read on a screen.
12. I give the client a method to collect the “puzzle pieces” or “objects” in their cases; the people, documents, organizations, places, events, and physical items that make up their story. I give them a kit with instructions and folders and fill in the blank forms, so they don’t have to write me ten times a day.
13. When I get a really “chatty” client, I gently remind them of the impact on their bill, and when a client goes rather silent, I remind them I must be kept in the loop. Sometimes they decide that if they write only the paralegal, perhaps that will save money, but we gently guide them to include us both so that she does not have to take the extra step of forwarding it to me. It is an ongoing and constant process.
14. Clients sometimes say, “That e-mail cost me $20!”;  or, “It didn’t take six minutes for you to read and reply to that e-mail.” My answer? “Often it does.” At other times, they are paying for 3-4 people to read and process the request. I explain that usually I reply to the e-mail but don’t charge for “sent e-mails”. It is a great way to “keep score”, and a great way to maintain a narrative of my services.
15. There is a balance. I send and receive many more e-mails than the average lawyer. It helps me and my opponents understand one another. It permits the client to know she/he has been heard, and it supports my goal of moving a case to a successful conclusion. For me, e-mail has largely replaced “memos for the record”, a snapshot of each stage of a case and written confirmation of the advice given.
16. I am not ready to move to texting and instant messaging as a form of business communication. I hope the e-mail era lasts. It is an invaluable tool. But like any powerful tool, use it wisely!

This post was written by Burton Hunter

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