Tuesday, May 9, 2017

A Practical Guide to the "Nastygram": Best Practices for "Conflict" Emails

We spend hours each week writing letters accusing people of breaching their obligations, defending our clients against the accusations of others and telling other lawyers to "pound sand" when they are not being reasonable.  We affectionately refer to these communications as "nastygrams."

You have probably written a few yourself.  There are often several volleys of emails exchanged in a typical business dispute before any lawyer is ever involved.  Since these emails can affect the trajectory of a dispute and its eventual resolution, we encourage our clients to contact us early when a dispute crops up.  But the ideal is not always feasible.  Here are a few of our best practices for your "conflict" communications:

Include Context
No one wants their emails taken out of context; so include the context.  It can be tedious but it's important.  For example, you sell 10,000 widgets to a customer but 5,000 are broken.  You call the furious customer and agree that if the customer does not sue you, you will give them a significant discount on their next order.  After the call, you write a brief email: "I am sorry about the broken widgets and I am looking forward to putting this behind us."  Although you give the discount on the next order, the customer sues you anyway and claims that your email admits liability.  A better email would have been: "This will confirm our agreement that you agree to forego taking any action against us because of the broken widgets and we will give you a 50% discount on your next order. I am looking forward to putting this behind us and hope to have a mutually beneficial relationship going forward."

Write Your Emails To The Judge.

If a small dispute turns into a large one, a number of people are going to look at and make decisions based on your conflict emails.  Opposing counsel will review them.  You may be questioned about them during a deposition.  A judge may make decisions based on their content. 

When you write conflict emails, pretend you are writing them to a judge.  Stick to the facts and leave out emotional invective.  Absolutely no profanity or personal attacks.  Try to stay away from technical jargon, use plain language instead.  Why?  Because these things make you look horrible in front of a judge!

Don't Admit Things If They Are Not True.

Some people treat the resolution of a business dispute-particularly one involving a customer-like making up with a boyfriend or girlfriend after a fight.  There is a tendency for both sides to say, "I was wrong to."  It allows the other person to avoid the full blame for the dispute and can smooth the way to reconciliation.

Resolving a business dispute is different.  Do not admit wrongdoing unless you are sure you have done something wrong.  Your admission can haunt you.  You do not have to be cantankerous with the other party by blaming them for the dispute but if you do not believe you are at fault say so.  Something like "I disagree that our company is at fault but we value this relationship and want to move forward amicably" will usually do the trick.

Do You Really Want To Put That In An Email?

Before firing off scathing emails, consider whether an email is the right way to communicate. We like email because it builds a permanent record of communication, including the exact time it was sent.  Also, taking the time to write a thoughtful email can allow the sender to cool down and carefully consider the communication.
When improperly used however, emails can alienate the recipient, seeming more like an unrelieved monologue than a valuable interchange.   Emails also lack the information that body language or tone of voice conveys. Language printed in an email may seem harsher than in a spoken conversation. Moreover, the "permanence" of email, which makes it a valuable recordkeeping device, also allows them to be easily forwarded to a wider audience or posted on social media.

Think carefully about how you choose to communicate. A phone call or an in person meeting can often de-escalate a situation and lead to a quicker resolution in a way that emails cannot.

What Do You Want To Happen?

Have a clear picture of what you want to accomplish with the communication.  There are a variety of legitimate reasons for conflict emails but they usually fit into a few categories.  You may be trying to build a record of what happened.  You may need to correct someone else's misstatement of events so that it does not appear you agree with them.  You may want the other person to do or not do something. 

If you do not have an easily articulated reason for writing an email or the reason is to punish someone, "vent" or generally "get something off your chest", do not send it.  Remember that not sending a communication can be a very effective strategy.  Silence has its advantages.  It conceals your position and your knowledge of the facts, possibly making it more difficult for the other party to interfere with your strategy.  But be careful not to let silence look like acquiescence.