Anyone involved in any part of the litigation process knows that communication with opposing counsel must be carefully monitored. With the potential for extreme emotions hovering over every interaction with an opposing law firm, legal professionals have to be exceptionally careful in their electronic communications.
To avoid costly mistakes, use this list of tips for keeping your emails to opposing counsel bullet-proof:
#1: Consider everything you put in writing to be an exhibit that will end up in front of the judge
The “New York Times” rule for sending emails suggests that before you send an email, you should make sure its contents wouldn’t embarrass you if it ended up on the front page of the “Times.” Before you send an email to opposing counsel, consider how the judge in your case would take it if your email ended up as an exhibit to a motion.
Instead, it is good practice to review each email to your opponent as if you are the judge reading it from a neutral arbiter’s perspective. Does the email make your side sound reasonable? If so, hit “send.” If not, rewrite it until you’re comfortable it can’t harm the client’s case.
#2: Don’t put the opposing counsel’s email address in the “To:” line until you know your email is ready to send
This is a simple tip, but it is one that can save you from costly mistakes. Never fill out the “To:” line of your email until you are absolutely, positively, ready to send it. This can prevent you from sending the email to the wrong person. More importantly, it can also prevent you from sending an email before it is ready to go.
When I was a young lawyer, I remember hearing of an associate at a nearby law firm who would let his frustration out by drafting an obscene rant in an email intended for opposing counsel. One day, he accidentally hit “Send” on the joke email and it ultimately ended up in front of the judge. The backlash of his mistake left him jobless and utterly embarrassed.
#3: Don’t be overly friendly with opposing counsel
The code of ethics surrounding counsel communication is pretty general, but it’s necessary to maintain a high level of decorum in any interaction with opposing counsel. The best way to avoid this trap is to keep all communications with opposing counsel in a professional, arm’s length tone. Even if the other lawyer is a genuinely friendly person, emails showing an overly familiar, joking tone could be misconstrued by a judge or your client.
To avoid any mishaps, communicate with opposing counsel with the same level of professionalism that you would with clients.
#4: Delay hitting “send”
By setting a rule that your emails won’t go out for several minutes after you press “send,” you give yourself the chance to review its contents in case you missed an error. This simple tool can be a godsend for both your case and your career. If you have ever received a rude email from opposing counsel, it can be so tempting to fire back. This is when the “delay send” function of your email program can really save the day.
Raise your level of accountability by using this tip to ensure that your emails with opposing counsel are based on professionalism and adheres to court rules.
#5: Make sure your team is appropriately copied on all communications with opposing counsel
While juggling your tasks, it can be easy to quickly respond to an email from opposing counsel without copying key members of your team. Create a memo for yourself that clearly defines who should be copied on emails, how they should be copied, and when they should be copied.
You should also have readily accessible notes on when and how your client will be included in emails. If you don’t have 100% clarity on who should receive copies of your emails, ask early and often.
Follow these five tips and you’ll make it easier to avoid mistakes that could potentially harm the integrity of your firm. Also, add the ABA’s Model Rules of Professional Conduct to your bookmarks for future reference.