In 1960, you had very few communication choices

If you had something important to say you could have a meeting, make a telephone call, send a letter, maybe a telegram. But that was about it. Things said in calls and meetings might have gotten the 1960s-you in trouble, but the spoken word evaporated quickly. Letters lasted longer, but they took time to prepare. If you dictated a letter with ill-chosen language to your secretary, you had time to think better of it before it became permanent.

Fifty years later things have changed. We have dozens of means by which we communicate and they all share a risk that wasn’t present in 1960–they combine the permanency of the written record with the spontaneity of the excited utterance. Telephone conversations and meetings can be recorded on our cell phones. There are no secretaries to slow walk you through an angry letter. Everything is communicated in real time and forever. Nothing said or written ever goes away.

Look at the past and try to predict the future

  • It took 145,000 years for man to evolve from the spoken to the written word
  • Then there was 1500 years between writing on clay tablets and the paper printing press
  • A mere 600 more years later, the typewriter began popping up in offices
  • After that, it was only 100 years before the fax machine started delivering letters to places faster than a man could fly them there
  • 30 years later we had email
  • And only 20 years after that our cell phones started translating verbal messages to text

Every advance in communications technology is farther and faster than the one preceding it. While that has shrunk the world, it has also created a problem in that the skill by which we communicate has not kept up with the advancing means. When it comes to communications, we are horse and buggy people driving hover craft and, not surprisingly, we keep crashing.

As litigators, we see the costly result of the Communication Gap between skill and means

  • Small disputes drag on in discovery due to the sheer volume of communications between the parties—much of it only tangentially related to the issues at hand
  • Trials grow longer as lawyers are forced to stitch together emails, texts and telephone messages into something resembling an enforceable contract that the jury can understand
  • Cases that should be dismissed at summary judgment are prolonged by issues of fact created by contradictory internal communications rather than real triable disputes

At Redding Jones we work hard to help our clients close their Communications Gap before they pay for it in litigation—here are our Ten Commandants Of Litigation Free Communications

1. Don’t Be A Luddite Accept that fact that communications means are changing rapidly and make it your business to keep up, regardless of what your business is. If you find yourself using the word “newfangled” more than once a month, this might be a problem for you.

2. View Communications As A Task (and recognize that multitasking is from the devil) In our estimation, half of the communications blunders we encounter in litigation have their root cause in either not treating communications as a task that must be done correctly, or trying to do it while doing something else equally important. If your excuse for that bad email is “you wouldn’t have written it that way if you hadn’t been writing from an important meeting”, then you might want to think hard on this one.

3. Don’t Over-communicate There are only five good reasons to communicate: to seek information, to provide information (responsively), to provide information (proactively), to establish a record and to assign a task. If you are communicating for a reason other than this, think about the risk for a second. Silence is better than a communications blunder.

4. Don’t Communicate For A Bad Reason There are five reasons to communicate that you should never use: to complain, to make excuses, to stir controversy, to distract and to alleviate boredom. If tempted by one of these, take a walk instead. All five produce bad communications that will get used against you in litigation.

5. All Good Communications Share The Same Hallmarks They are concise, clear, unemotional, have a single purpose and are accurate. Before you send your next email or Facebook DM, run it though these five hallmarks and see if it can be improved.

6. Never Vent Now matter how bad you think things are, the juror hearing you read your tirade in trial four years later will not be sympathetic. They’ll think you are whining, or worse.

7. Never Lie Get caught lying once, and to the jury, you’re a LIAR about everything. Don’t let one small mis-truth destroy your credibility.

8. Rarely (but only if you have to) Opine There are relatively few jobs that require the communication of an opinion. As a result, there are very few people who are good at communicating opinions without getting themselves in trouble. Better off to just stick to the facts.

9. Never Communicate When You Are Hungry, Angry, Lonely Or Tired The tone of your communication will be infected by your mood. Go eat a sandwich before writing that email.

10. Never Berate Jurors are like everybody else. They enjoy seeing themselves as the avenging angels of victims of bullying. Don’t give them the chance to misunderstand what you meant when you ripped a guy for his chronic halitosis.

Nothing can keep you from being sued. But there is a lot you can do to keep it from being worse than it has to be. Be as skillful in your communications as you are at the rest of your job and you can help control your exposure.