We are nearly at the point were everything we do is recorded.  Think no one knows where you are?  Wrong, your phone’s GPS can be used to track your location without you knowing about it. 

Parties to lawsuits have not realized this new phenomenon either.  In almost every case I have litigated in over the last two years the parties’ emails have played a critical role.  Why is that?  First, almost all communications are done through email.  Email drafted three years ago, and produced in the course of litigation has a lot of credibility because it recorded the facts as they existed at the time the writer sent the email.  It is is very hard to dispute those facts. 

Is This Good Or Bad?

It is good because it is that much easier to catch a lair these days.  It is also bad, because if you do not take the time to accurately draft an email – and your words could have two meanings – it could come back to bite you.  Seth Godin had some good advice today, and provided 8 tips that are well worth a review:

1. Change your settings so that email from you has a name, your name, not a blank or some unusual characters, in the from field. (ask a geek or IT person for help if you don’t know how).
2. Change your settings so that the bottom of every email includes a signature (often called a sig) that includes your name and your organization.
3. Change your settings so that when you reply to a note, the note you’re replying to is included below what you write (this is called quoting).
4. Don’t hit reply all. Just don’t. Okay, you can, but read this first.
5. You can’t recall an email you didn’t mean to send. Some software makes you think you can, but you can’t. Not reliably.
6. Email lives forever, is easy to spread and can easily show up in discovery for a lawsuit.
7. Please don’t ask me to save a tree by not printing your email. It doesn’t work, it just annoys the trees.
8. Send yourself some email at a friend’s computer. Read it. Are the fonts too big or too small? Does it look like a standard email? If it doesn’t look like a standard, does this deviation help you or hurt you? Sometimes, fitting in makes sense, no?

It is also worth remembering how useful email can be as a tool to record facts as they exist on a certain day and time.  It is very easy to send yourself an email to record a discussion that took place – and this email will have a lot of credibility should that discussion ever be the center of lawsuit.