Time and again, in jury research and in juror interviews following verdicts, contemporaneous writings by persons with the closest relationship to the litigated dispute--those who negotiated or implemented the contract, who made the employment termination decision, who engaged in price negotiations, and the like--receive dispositive weight. Internal memos, e-mails, text messages and even postings on social media have overridden percipient testimony no matter how credible.
For a defendant, these types of documents can be the most dangerous. This difficult lesson must be taken seriously..Managers and employees need to understand that their casual communications take on an entirely different appearance when they are written and preserved and then viewed years later, possibly out of context. Indeed, e-mails that reflect intent trump, in jurors' minds, the actual wording of contracts or the testimony of management who have made important decisions for the company. In addition, e-mails tend to be forwarded to unintended recipients and are unlikely to be deleted from all of the places that they end up. They are almost invariably viewed by outsiders, including jurors, as a true glimpse into the inner thoughts of the sender. From a corporate perspective, e-mails are best used only to convey objective information without judgmental or colorful additions. So what can be done?
First, company employees should be counseled on basic e-mail hygiene: Each e-mail sent within a corporate environment (in a nonprivileged context) should be written with the content and tone in mind that the employee would not mind showing the e-mail to any third party--in other words, assume publication.
Second, once critical e-mails are discovered in litigation, they should be reviewed and put into context. Employees being deposed about their e-mails must be prepared to explain in their deposition the context in which the e-mail was sent and to credibly and truthfully explain in the deposition what was truly intended. Although sometimes considered a risky strategy, to the extent that counsel is confronted with the situation where an employee author of an e-mail is asked in a deposition simply to authenticate the e-mail document, counsel must carefully consider whether to take that employee on essentially direct examination in the deposition and offer the employee the opportunity to explain it. If necessary, that prophylactic tactic could preserve a case on summary judgment and inoculate the e-mail from harmful use at a later trial.
Third, when seeking to make an offensive use of an opposing party's e-mail, make sure to emphasize the importance of the contemporaneous and candid aspects of that e-mail both in the deposition context and at trial. In short, argue that e-mails are the most relevant evidence of true intent and motive in a case. Because e-mails are often sent casually and are believed to be confidential, argue that they are the best window into the mind of the sender.
Fourth, avoid at all costs the temptation to have an employee witness ever say that he or she did not mean or intend to convey the plain meaning of what is in black and white in a written document.Juries believe that contracts and contractual language represent the deal that was struck and should be enforced. They also believe the plain meaning of letters written to third parties. Most importantly, they do believe that people intend what they say--in e-mails, in text messages and in postings. Trying to say that an e-mail was a joke, is being misconstrued or was sent by mistake can lead triers of fact to believe that the witness is not being credible and forthright in communicating to the jury.
The difficulties that arise in the context of written internal communications can best be avoided by counseling employees always to take the high road in their writings. This is a somewhat vague admonition. It should, however, become an important part of corporate culture. The corporate mission that companies promote in their compliance program and outside literature should, to the extent possible, be consistent with the manner in which their employees communicate internally and with the outside world. If the mission and the communications align, employee witnesses and the company itself will be viewed favorably and credibly.
