An attorney once described emails as “the cockroaches of litigation” – they are pervasive, lurking in the dark to show their faces when you least expect it. And they refuse to die. They come out at the most inopportune times and leave a terrible impression on your jury.
So, what do you do if you find yourself facing a few bad emails (and hopefully not much more)? There are a number of steps you can take to mitigate the impact of bad emails, and here are three.
First, if one of your witnesses is associated with a troubling email, first discuss it with them. Sometimes there is an explanation that, while it won’t completely excuse the bad email, will at least provide important context for fact finders to hear. For example, while the other side may try to hone-in on one email in the entire string, your side may find it important to read the string in the context of other emails that were being sent at the time. Or, if a witness sent an email bringing up some issue or problem then failed to follow-up, have them explain what else was going on at that time, an in-person meeting that was held instead, or some other resolution that made it such that they did not send a subsequent email.
In a case we worked on recently, a senior executive’s initial response to learning about an accident in the company’s plant was to rush to get boots on the ground so they could repair the issue and also not lose significant revenue from that client. He, unfortunately, failed to ask the condition of the injured people at the plant or show remorse at the time for the accident. In the context of litigation and with the benefit of hindsight, it would have been a nice thing to ask at the time, but his focus as VP of Client Services was to fix the issue that was in front of him. Providing context to this email for the jury would be explaining his immediate reaction, then discussing their updates about the injured in the days and weeks that followed.
Second, prepare, prepare, prepare. Tone will be important when the witness testifies about the bad email. An explanation combined with defensiveness will leave a more damaging impression than the content of the email on its own. Practice not only what the witness will say, but how they will say it and how they should look when they say it.
Third, face the emails head-on. I’m always looking for ways my clients can “eat crow” in a way that bolster credibility with the jury, while not giving away liability. Accepting responsibility for a poorly worded email can do exactly that. . After all, we’ve all been there. And we’ve all wished we had written something differently when looking at it with the benefit of hindsight.
The cockroaches of litigation may find a way to creep their way into your case. Work to mitigate their damage by providing context for the emails, preparing the witness on how to handle the email, and tackling the email head-on. You cannot run in fear from the cockroaches – you have to squash them.