The email revolution: More than just a smiley face

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Years ago, the daily mail delivery was a major event in our firm.

In fact, we had a staff person assigned to walk to the post office sorting room every day at 10 a.m. so we didn’t have to wait for delivery. There was a protocol for sorting mail, starting with the senior partner, then the junior partner and then the associates. If possible, lawyers would try to be available to see what the mail might bring.

But now, email is king of communication, and it’s been years since we suspended the practice of picking up the mail ourselves. Since I have little interest in catalogues, charitable solicitations (If they spend all their money on fancy mailings and postage, why would I contribute to them?) and even most CLE fliers, many days the mail is such a total nonevent that I don’t even know when it arrives.

Email has almost entirely replaced the letter as the preferred source of communication between counsel. And it’s on its way to replacing the telephone call with clients.

Email has and continues to profoundly change the way family law (perhaps all law, but I’ll stick with what I know) is practiced — some for the better and some not.

For the better:

• Easier access to clients, experts and opposing counsel. Back in the day, “telephone tag” was a common, often frustrating game. Sometimes, it seemed that everyone would call at the same time. I used to joke that I had the magic ability to make the phone ring: All I had to do was to stand by my receptionist’s desk and say,“I have to leave right now. I’m late.” Ring, ring, guaranteed! Now, you can leave your office without fear that the call you have been waiting for will come just as you are out the door.
• Flexibility in location. Want to go home early? Your email can be accessed there. In fact, although it is not highly recommended, you can even check it while you are driving home.
• Flexibility in time. You can access email in the evenings, on weekends, on vacation or whenever you choose to. Or not. It still will be waiting for you when you get back to the office.
• Preservation of evidence. To some extent, we all practice law defensively, as there is always the risk of malpractice.
• However, most lawyers, I suspect, are like me and rarely draft memos to the file memorializing all of their advice to the clients. Even less frequently, we tend not to draft defensive letters to our clients — the type of letter designed to be “Defendant’s Exhibit A” at your malpractice trial. Email offers an easy and inexpensive means of preserving these conversations and the reasons for the lawyer’s advice. But be sure to backup your email account. It can crash, and all that valuable information will be lost.

The downsides:

• The client expects you to be immediately available. A colleague recently told me about getting an angry email from a client, as follows: “I sent you an email at5 a.m., then one at 6 a.m. and it’s now 7 a.m. and you still haven’t answered!”
• Some communications don’t sound the same in writing. This is particularly true of sarcasm and some humor. Yes, you can add a smiley emoticon, but the written word reads differently than the spoken word sounds.
• Hitting the wrong button. It’s easy to make a mistake. The most common is to hit “reply all” and then unintended recipients, such as opposing counsel, receive your — or your client’s — email.
• Intercepted email. This is especially a danger if your client is emailing from the family computer and has not changed the password. The cure for this problem — and the one above — is simple: “Never say anything in an email that would embarrass you if unfriendly eyes read it.” Follow that rule and you have nothing to worry about.
• Getting paid. Some clients think that reading and drafting emails are free. It should be specifically stated in every lawyer’s standard fee agreement that there is a charge for these services.
• Lack of a filter. Back in the days of actual letters, my legal assistant often acted as a filter, telling me when a letter I had drafted sounded too harsh. Nasty emails to an opposing counsel may entertain your client, but they are counterproductive when it comes to resolving issues. So, you have to serve as your own filter. If you are not sure how the other side might react to an email, save it in draft form and wait at least a few hours — a full day is even better — then re-read it before hitting the send button.
• Quantity. It can be disheartening when opening your email program first thing in the morning and seeing 100-plus messages loading.

Progress is not bad. Email has many attributes in speed and efficiency versus the old ways of doing business. But, lawyers need to remember that email is not identical to letters and should take appropriate precautions to avoid misuse.