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Email as potential evidence in business litigation

On Behalf of | Jan 3, 2023 | Breach Of Contract, Business Litigation, Real Estate Litigation, Trust & Estate Litigation, Trust Disputes

In the last two decades, email has revolutionized business communication. In some ways email has made things easier, it can be a convenient channel for suppliers and potential customers to reach out to businesses. If disputes arise, however, the information in all those email threads can quickly become a point of contention in business litigation.  Buffington Law Firm’s trust, business, and real estate litigation attorneys have litigated many trials and arbitrations in which email was the key evidence before the judge and/or jury.  Email evidence can be highly persuasive.

That is why, in an article on our website, we explore the notion that “email is death.” In this blog post, we will discuss why it is so important to remember that email is potential evidence in business, trust, or real estate litigation.

Written vs. oral communication

In a business dispute, verbal accounts of what the parties said to each other often conflict. Each party may have his or her own interpretation or spin on what each party said and what they meant.  Lawyers have a term for this: “he said, she said” meaning that the litigants or witnesses directly dispute one another concerning key points of dispute between the parties.  Judges and juries know this.  First hand witness testimony can be persuasive, but it is not always believed.  The written word, by contrast, is pretty hard to doubt or refute.

With email the actual words are there to be reviewed.  All of them, because email never really goes away.  Email chains go back and forth between the parties, showing in real time what was said and the context for various responses. Understandably, such records take on a big role in litigation that turns on determining what the parties actually said to each other.  Judges and juries may often doubt verbal testimony.  Email virtually never leaves it to doubt as to what the exchange was between the witnesses or parties.

Tone and “too much information”

Email does not only preserve the words the parties used. The format can also encourage an overly informal style in which a party can express too much negativity or share too much information.  Put another way, it is notorious that too often a party or witness will send an email when angry or upset.  Usually the email phrasing and tone cause the message to fully capture, or even exaggerate, the emotional state of the sender.  This can have unfortunate results in court when these emails become evidence.  Not uncommonly, intemperate emails can cause a normally credible, poised, and polished witness to appear foolish or worse, dishonest in court.  The takeaway from this is that when using email in a commercial setting, or any setting in which litigation is remotely possible, it is wise to write every email as you would write it if you knew that it was going to be an evidentiary exhibit at a trial.  No exceptions.

Part of the problem with email is that although you are directly interfacing with another person, you are doing so remotely and indirectly.  People say things to others in email that they would not say face-to-face to the same person in the same context.  In this respect, email is quite different than a telephone call. With a call, here is a human being on the other end to act as a check on a problematic tone or the sharing of too much information. With email, there is no such check.

Social media can be problematic too

Issues of unwise oversharing can arise with Facebook or other social media posts. We will discuss those in an upcoming post. In the meantime, remember: email and social media posts can be used as evidence in business litigation.

If you have a business, inheritance, or real estate dispute, Buffington Law Firm invites you to contact us for a Free Legal Consultation.  All consultations are with an actual experienced trial attorney and are fully protected by the attorney-client privilege.