Published September 2012
By Carolyn Bell
It’s happened to you. You’re sitting at your desk, and you get an email from opposing counsel in that horrible case you have. You popped one off to her earlier in the day, while sitting in your car waiting for the light to turn green. You can’t believe the snideness of her response, and you really can’t wait to fire off your reply…
Before you hit send, STOP. That hasty, nasty email may not only reflect poorly on you and the legal profession, but may constitute violations of both the Fifteenth Judicial Circuit Standards of Professional Courtesy as well as the Rules of Professional Conduct of The Florida Bar. Instead, consider the following:
TOP TEN E-MAIL DO’S AND DONT’S
- Stick To The Issues: Keep your emails focused on the issues at hand. If you are scheduling depositions, focus on dates. If you are discussing discovery, focus on logistics. If you are addressing legal issues, discuss the legalities.
- Shorter is Better: This is the corollary to Stick To The Issues. Thomas Edison famously said, “You will have many opportunities in life to keep your mouth shut: You should take advantage of every one of them.” The same is true of your typing.
- Avoid Negativity: Always remain courteous, reasonable and professional. Always. Email is not the forum for attacking your opponent’s competence, ethics, or professionalism. If you want to vent, do so out loud to your friend down the hall or, better still, to your dog.
- Avoid Misunderstanding: This is probably the biggest issue with email. The nature of emails and the informal, quick manner in which they are usually created can easily lead to unintended sub-text. Inappropriate informality, misguided attempts at humor, and poor word choice are all too common. SOMETIMES PEOPLE USE ALL CAPS BECAUSE THEY DON’T KNOW IT SIGNIFIES SCREAMING; sometimes they use an emoticon they learned from their teenager that doesn’t mean what she told them it meant. These issues are exacerbated by the lack of face to face interaction, and the absence of those subtle but real clues about meaning that we gain when we look at someone’s face. In addition to unintended messages, there are those emails that are the result of “The Bad Moment,” when someone is stressed out and sends an offensive missive that is otherwise out of character. To avoid misunderstanding, beware of unintended hostility when you send a message; just as importantly, when you receive an email, assume any hostility is unintended or just a momentary lapse.
- EDIT for Style, Spelling, Substance and Sub-Text: Emails are a reflection of the kind of lawyer you are. Careful editing is as important in an email as it is in a more formal letter or court pleading. Take the time to review your email not only for grammatical issues, but also to be sure it mirrors your usual courteous, professional tone.
- Defuse Confrontation: Much has been said about the legal profession’s current lack of courtesy. Many attribute the problem, at least in part, to too little personal interaction. If you see your relationship with counsel devolving, pick up the phone. Arrange to meet for coffee or, better still, lunch. Sit next to one another at the next bar function. The best lawyers I know always begin a case by calling opposing counsel, and maintaining a personable relationship with their adversaries. Clients are almost always best served by lawyers who can work with the other side. It saves unnecessary litigation costs, and allows for more effective settlement negotiations. The legal system requires lawyers to be adversaries as to the law and the facts – not each other.
- Never Forward Without Permission: Oftentimes, inappropriate emails are written for an audience. Perhaps you are writing to impress a client who mistakenly equates entertainment with effective lawyering. Perhaps you want to forward the chain to your pal for a good laugh during happy hour. If you don’t allow yourself to forward without permission, you won’t be tempted to succumb to these pressures.
- Remember Email is Eternal: Email, like everything on the internet, is a virtual tattoo. Be sure that what you write is something you won’t mind your kids – and grandkids – seeing when they google your name.
- Follow “The Mother Rule”: Don’t say anything in an email you wouldn’t say in person, in a courtroom, with the cameras on and the press in the gallery, in front of a Judge. Have your mother as an imaginary blind cc on every email you send.
- STOP BEFORE YOU SEND!: Before you hit send, STOP. Walk away. Come back later. Consider whether a response is necessary. If it is, ask yourself if what you have written is a positive reflection of you and the legal profession.
Then, hit SEND …
Carolyn Bell works as an Assistant United States Attorney in West Palm Beach. Ms. Bell is also the current Chairman of the Florida Bar Professional Ethics Committee, and the immediate past Co-Chairman of the Professionalism Committee of the Palm Beach County Bar Association. The views expressed herein are her own and do not reflect those of the United States Department of Justice.