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Email as Evidence in Business and Trust Litigation

On Behalf of | Mar 1, 2014 | Business Litigation

Buffington Law Firm’s business litigation attorneys have represented clients in business, real estate, and trust dispute trials for over 16 years.  During this time we have noticed a number of important trends that people should keep in mind when engaged in a business or trust dispute.

One of the most noteworthy changes that has taken place in business litigation over the past decade is the importance of email as evidence.  Buffington Law Firm’s business trial lawyers have conducted many trials in which the most important evidence in the case consisted of emails between key individuals.  Experts will usually agree that one of the most persuasive types of evidence in a trial is “the written word.”  Conflicting witnesses will often give remarkably different testimony about versions of events, conversations, and the like, but written correspondence is something that the judge and jury can actually see and evaluate for themselves.  Email written by a party in a lawsuit is almost always admissible as evidence under the California Evidence Code.  Email by employees is often admissible against the company.

Unfortunately, email is easy to use and to misuse. Since it is far easier to fire out an email than to sit down and write a letter and mail it, email often involves much less formality and yes, much less careful thought than a formal business letter.  People who are engaged in a pre-litigation business, trust, or real estate dispute are often and understandably irate and under stress.  Often the result of this is a hostile email chain between the parties.  Often these email chains start out friendly and quickly degenerate into intemperate statements.  Sending such emails may temporarily make a person feel that he or she is “in control” and “dealing with the problem” but what is really happening is that the participants in the email chain are creating a hard and persuasive record of the dispute.  If one side sends a nasty and hostile email this rarely creates a good impression in court, and it creates an indelible record of what was said.  Email never goes away, and one of the first things that lawyers do at the beginning of a lawsuit is to gather and evaluate all of the email between the parties.  Again, such correspondence is usually admissible as evidence, and experience has taught us that it is usually persuasive evidence.  Email can create what appears to be (but which may not be) an accurate record of what went on in the events running up to a lawsuit.  This often turns out not to be consistent with the way your attorney would like to frame your case in litigation. 

We recommend that if you are in a business or trust dispute that you use email sparingly and with great care.  If a matter seems like it may end up in litigation, we recommend that you avoid email altogether except for routine and mundane purposes such as emailing documents, coordinating dates, and the like. 

If you are engaged in a dispute involving a business, trust, or real estate dispute, don’t create a mountain of email!  Instead, call Buffington Law Firm and speak directly to one of our experienced Orange County trial attorneys in a free legal consultation.