E-mail and the Lawyer

[This post originally appeared at Slaw.ca on November 17, 2014]

E-mail is dead. Social media and instant messaging (IM) are replacing e-mail. Those are the messages of emerging communications driven by so-called enterprise technology. These tools, designed for companies that fire more employees than legal professionals comprise the entire Ontario bar, can enhance internal firm interaction. But e-mail remains the bread-and-butter tool for solo and small firm lawyers and a primary method for communicating with clients and others.

So why are we not experts at using it?

To be honest, I rarely think about how I use e-mail. My habits run in well-worn ruts. But I was jolted out of that state by a question from a lawyer on how to use e-mail. I could understand if this was something new – like Windows 8 or a Leap controller – but surely e-mail is as familiar as any tool in a legal professional’s toolkit? It made me go back and think about what advice I’d give on using e-mail.

Short and Sweet

You’ve explained in your retainer agreement that you’re going to be communicating by e-mail, right? E-mail can be a powerful tool for client communication, a recurring problem for lawyers. It’s asynchronous, unlike a phone, so they can read it on their own schedule. It can be written at one moment and scheduled to be sent later. It can be printed and saved to a client file.

Get in the habit of regular e-mail updates using short, clearly written messages. Understand the tool. It is sometimes misused as a PDF delivery tool. Instead of drafting a short letter, PDF’ing it, and sending it as an attachment, put the text of the letter in the e-mail and skip the extra file.

My Disclaimer is 1KB

Unless you have a specific need for a disclaimer, don’t use one. Lawyer disclaimers are a joke. The reasons have been well laid out by others. I see most of the disclaimers after I have already read the affected content. Many of them warn me that the invitation to go to lunch or to approve the purchase of pens at the office store are confidential.

We seem to use disclaimers because we don’t take the time to think about what we’re doing when we send e-mails. If you are taking time to avoid unintended consequences, the only disclaimers you’ll need are the ones required by regulators. Think about who you are e-mailing. If you have a disclaimer in both French and English – a common thing in Canada – you may decide to just send the one that your recipient can read, if they speak only one or the other language.

Don’t Automate Stupidity

It is easy to find stories of people who typed in a sender’s name and their address book automatically inserted a match. The wrong one. Mis-addressing an e-mail may not cause privilege waiver but it’s sloppy and easy to avoid. Turn off the autocomplete feature in your e-mail software first. I keep Outlook’s other feature – autoresolve – turned on so that it at least finds possible matches, without completing them. And I type the addresses in last, so that I don’t accidentally send an e-mail using a set of hotkeys that I didn’t know existed. E-mail communication should be purposeful, so do things on purpose.

Watch Encryption

This isn’t there yet. Most encryption will require you and your client to install software. Enterprises are encrypting internal e-mail – because a central IT unit can implement and enforce it – but when a message leaves the company, it’s not as simple. Solos and small law firms will be sending most of their communications to people outside.

You can use encryption if you have Microsoft Exchange (in your firm or in the cloud). A number of e-mail encryption options require either you and your client to use the same software or the same encryption tools. Alternatively, some services, as with Exchange, have your client receive a link to an encrypted Web page.

It’s coming, though. Virtru is a simple and easy tool for Web mail. Google End to End is receiving feedback. Perhaps we’ll see some melding of the extensive number of free PGP clients with an easier to use install and interface. Just as technology knowledge is arguably becoming part of your competence, encryption is rising on that same horizon.

You may also want to leave sufficiently risky communications to paper and face-to-face meetings rather than putting them in e-mail. It shouldn’t be your only communication method even if it can handle a lot of the routine interactions of your law practice.

What Else?

Most e-mail use is common sense. It’s a communication tool. If you are using it to document rather than communicate, if you are inconsiderate of the recipient’s time and ability to comprehend, if you are sloppy in your sending and receiving, it may not work the way you hope it will. Other things that I do:

  • I rarely leave the e-mail trail within my reply. I cut out just the part to which I am responding and if I need the other e-mails in the discussion to be documented, I save them as PDFs to my file system;
  • the subject line can help start your communication. Use it to create context, and then get to the point immediately in your e-mail. The benefit over a phone call is you can skip all the “hi, how are you” niceties;
  • sometimes you can’t be concise. I often use bold text if I’m sending a dense e-mail, to help people find the key points, particularly actions we’ve agreed they are going to take;
  • I’m not as funny in e-mail. Well, my daughter would say I’m never funny. I leave the humor for people who know me exceptionally well, and it is usually exaggerated. Otherwise, I try to stick to the facts I want to share, the questions I want answered, and the actions I want taken. If someone has to interpret my e-mail, then I haven’t written it as well as I could.

There’s plenty of additional advice on the Web for how lawyers and paralegals can use e-mail and how they can use specific e-mail software. Hopefully most legal professionals are comfortable with how they approach e-mail. If you aren’t, or doing things that you regret afterwards, take some time out of your practice and work out a process to do it better the next time.

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