Email is ubiquitous, necessary, often convenient and sometimes annoying. It’s also dangerous.
In a busy law practice, email is ideal for communications like “I’ll call you today at 3 p.m.” It is less than ideal for communications like “Ann was late to work again. OK to terminate under our attendance policy?”
As a management-side employment lawyer, I get the latter type of email far too often. Most emails will contain more details, like Ann’s history of tardiness and a copy of the attendance policy, but that is simply not enough for good decision-making.
Lawyers must be cautious about their use of email when running their firms and advising their clients. My intention is not to wax poetic about the joys of law practice 20 years ago, when email was a novelty and attorneys regarded fax machines with suspicion. Technology undeniably has improved the practice of law. Email, however, is a mixed blessing. It speeds up communication and allows for greater efficiency. However, email lacks the tone, inflection and other nuances of live conversation. This can be a recipe for outright dissembling, misunderstandings and bad decision-making.
1. Lies: Last October, the Journal of Applied Social Psychology published a research paper, “Liar, Liar, Hard Drive on Fire: How Media Context Affects Lying Behavior.” Researchers recorded short conversations between college students that took place face-to-face, via email or by instant messaging. The conversations were then analyzed for inaccuracies.
The researchers found inaccuracies in all forms of communication, but they found that email was the most likely to contain actual lies. The researchers theorized that, because the email communicators were physically separate and were replying asynchronously (as opposed to instant messaging in real time), they felt more disconnected and found it easier to lie.
A research study on college students may not prove much about the practice of law. Nonetheless, most lawyers have received emails from clients that, after some investigation, proved to be far less than accurate. As a general rule, the newer the client and the longer the email, the more cautious an attorney should be.
2. Misunderstandings: Even if an email is accurate from a factual standpoint, readers are more likely to misunderstand or misinterpret its content than listeners are to do the same in an actual conversation. This is not surprising, given the limited features of email.
After all, email cannot convey tone of voice, facial expressions or body language. Email is unadorned text, and readers easily can miss or misinterpret attempts at humor or sarcasm. Smiley emoticons arguably are helpful, but they seem misplaced in business communications.
Furthermore, lawyers are notorious multitaskers, and they often write and send emails while distracted by another task. Few lawyers would use our daily emails as professional writing samples. Omitted words, typographical errors and careless drafting are common pitfalls.
Even people who carefully draft and proofread emails (e.g. my mother) may overestimate how well their readers will understand them. In December 2005, the Journal of Personality and Social Psychology published an article titled “Egocentrism Over E-Mail: Can We Communicate as Well as We Think?”
The researchers found that email senders tend to overestimate their ability to communicate their feelings. Likewise, email recipients tend to overestimate their ability to correctly decode the sender’s feelings.
As such, a lawyer should not harbor a false sense of security simply because she drafts emails more carefully and precisely than most. An increased chance of miscommunication seems to be inherent to the medium.
3. Bad Decision-Making: Even when communication works and everyone is on the same page, email discussions can lead to bad decision-making. Important decisions require an understanding of the big picture, and scenarios presented by email often lack context.
For example, I recently received an email from the CEO of a physician group. A physician had been unable to work due to a serious illness, and the question was whether the disability provision in the physician’s contract had been triggered, terminating the contract.
On its face, this was a straightforward question answerable by email. By its terms, the contract could be terminated after 90 days of inability to work, and that time period had been reached.
A telephone discussion, however, uncovered other issues. The physician was popular with patients, and termination would have been a public relations disaster. The physician soon would be able to return to part-time work, and he wished to do so and then retire at the end of the year. A separation agreement was negotiated that included an agreed resignation announcement; transition of the practice to another physician; and resolution of issues involving restricted stock, deferred compensation and ownership of medical equipment.
In other words, this situation required discussion of the big picture, and the email I initially received was not ideal. It should have said “I’ll call you today at 3 p.m.”