In last week’s business litigation Blog, we talked about some of the dangers of email in business litigation. Buffington Law Firm’s business litigation trial lawyers have noted a trend in recent years whereby email between the parties of a breach of contract or other business dispute has become a key source of admissible evidence at trial. In numerous breach of contract lawsuits that I have personally taken to trial, it was clear that the email between the parties was the most important and usually the decisive evidence in the trial.
Last week’s blog discussed the importance of tempering the tone of email and avoiding recriminatory email. This week we will focus on the simple overuse of email. The Governor Chris Christie “bridgegate” situation is an excellent case in point. The issue in that controversy is whether Governor Christie actually knew that his aids were engineering a miserable traffic closure to punish his political foes. There is no doubt whatever that teams of reporters are sifting through Governor Christie’s email in hopes of finding the “smoking gun” email that purports to prove that he was told about it while it was ongoing. And here is the critical point: if such an email was sent to Gov. Christie’s email account, it will make no difference to public opinion whether or not he actually read it or understood its importance. Denials will likely be snorted down by the press and Gov. Christie’s political opponents. If he received the email he will have been presumed to have read it and understood it. Put simply: he will own it. No matter that Gov. Christie may get huge numbers of email from people, which email he does not read.
This example is readily applicable to business litigation. If you are a businessperson receiving emails on breach of contract disputes or other issues within your business, whether it is fair or not if the matter goes to trial you will likely be held accountable not only for emails that you send, but also emails that you receive. Buffington Law Firm’s business litigation trial lawyers recommend that the use of email be limited to a volume that managers can actually read and control. Business organizations and individuals should try to avoid getting into situations where they are sending and receiving so many emails that they cannot track them and read them. To make this easier:
- Use email subject headers intelligently so that if you must use email it is at least grouped intelligently for easier tracking.
- Pay attention to distribution and limit it to people who really need to be included.
- Read the emails that you receive to ensure that nothing compromising is being sent to you.
These practices will be hugely beneficial in the event of a trial.
As I discussed last week, while witnesses often contradict each other as to what was said in negotiations or discussions, email is something that the judge and/or jury can see for themselves, and they usually evaluate it for themselves. Use email carefully and sparingly.
If you or your business are involved in a breach of contract or other business litigation matter, Buffington Law Firm’s experienced business litigation trial lawyers are here to help. Call us today for a no-charge free legal consultation directly with one of our experienced attorneys.