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ISSUE V. 9 |
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FEATURE OF THE MONTH |
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CEB
Profile of Mary Kay Kane Business Employment
Law 1 Employment
Law 2 Family
Law General Interest |
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ARCHIVE OF PAST ISSUES |
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TEST YOUR KNOWLEDGE |
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General Interest |
Ten Ways E-mail Can Sabotage Your Deal
Helen Conroy, Attorney-At-Law, Oakland, California Contact: www.helenconroylaw.com
Everyone uses e-mail in business these days. What makes e-mail so convenient, however, also makes it deadly. Here are ten lessons you don’t want to learn the hard way. Each of these traps illustrates at least one principle applicable to negotiations in general, whether conducted online or off. And each demonstrates the new challenges that e-mail has created in controlling the two most important factors in any transaction—the information held by each side and the people negotiating the deal.
1. Don’t Hit the "Reply All" Button
Hitting "Reply All" creates several traps, including a critical risk every lawyer should consider with e-mail messages sent to more than one person—and not just those involving negotiations.
First, in team negotiations, when counsel and business team negotiators tend to send a lot of messages internally to the group, the circle may widen to include company personnel not officially part of the team. This occurs when the team needs technical, business, or administrative assistance to move the deal forward. The attorney-client privilege, however, does not protect communications with every employee of a client company. California courts generally extend the privilege only to senior personnel and anyone else whose communications are critical to the issues for which advice is sought and provided.
Messages replied to a larger group could be available to the third parties if a dispute arises down the road. Further, if those replies include messages in a prior thread, all of the prior messages may lose their privileged status. When you click "Reply All," make sure that you wouldn’t mind producing in discovery whatever you’re about to send, including everything that appears as you scroll down the page. This also applies to any kind of legal advice that you send via e-mail to multiple recipients, whether you are in-house counsel or outside counsel advising your client’s business personnel.
Another risk in clicking "Reply All" arises when you don’t know who "all" includes. Some e-mail programs send messages directed as "Reply All" to everyone, including Bcc’s—which means that the regular "Cc’s" can send messages to the original "Bcc’s" without even knowing it.
Or, the list of "Cc’s" may be long, and extend beyond the visible portion of the "Cc" field. Unless you scroll down (and many people don’t even realize that you can scroll down in the "To" field), there may be names you don’t see. Do you want to send any message to anyone unknowingly—whether in the context of a transaction or under any other circumstances?
So what should you do instead? Copy and paste the addresses that you want to reply to into a fresh message, with only as much of the original message as the reader needs. Always consider carefully whether everyone to whom you reply qualifies to keep the communication privileged.
2. Don’t Forward Messages from the Other Side to Your Team for Internal Discussion
Forwarded e-mail messages can easily derail the management and control of information critical to a deal. One devastating result can occur if the forwarding person’s e-mail program sends messages as attachments rather than as text below the signature line in the reply message.
Imagine this: You are negotiating a fairly complex transaction. Your team and the other side "meet" via conference call several times per week as you work through the issues. After each call, one side prepares and sends to the other a summary of the conference call, including the points agreed to, the issues identified as still under discussion, and a proposed agenda for the next meeting. On occasion, the sending party may make a proposal, based on approvals sought or investigation done on open points discussed in the last conference call.
Imagine that you receive one such message—a full summary of where the parties are, where they are going, and perhaps additional information on a business or technical point that was raised in the last discussion. You forward the message to your entire business, technical, and legal team for everyone’s input. You expect them to send you their analyses of any new information in the message or disclosed in the last conference call. That, after all, is how you prepare for the next call.
Imagine now that "Chris," one of the recipients of your forwarded message opens it, sees the new information from the other side, and of course, wants to respond. Chris hits "Reply All" with the intention of "correcting these errors" for distribution to the entire team before the next call. In that reply, this diligent technician analyzes every point in detail, carefully addressing all of the issues, and offering technical and business information to put the analysis in perspective. Unfortunately, Chris does not realize that the message replied to did not originate from internal counsel. Clicking on "Reply All" creates a response to Chris’s lawyer and opposing counsel who will receive the full analysis, complete with a considerable store of "private information" not intended for distribution outside the company. It takes little imagination to appreciate how this transfer of information could dramatically change the course of a negotiation. (Note, too, that this particular example also illustrates well why negotiating team members should never click on "Reply All.")
So what should you do instead? Copy and paste into a new e-mail message the relevant text. Send it only to team members who need to see it. And make sure everyone knows about this potential problem.
Is it enough just to make sure that everyone’s e-mail program (such as Outlook) is set so that messages are always forwarded in text? Probably not. You run the risk that the recipient and potential forwarder of messages (or someone else on his or her behalf) could change the setting, or forward a message to a laptop or other computer for convenience while on the road, but not change the setting in that e-mail manager. Moreover, there are other risks to forwarding (see below) that make cutting and pasting into a new message a much better solution.
3. Don’t Forward Any Message Ever Without Reviewing All the Prior Threads
Many people, when they want to send a message to someone with whom they have previously communicated by e-mail, simply find a prior message from that person and click the "Reply" button to set up the new message. Unconcerned about the text of the original message, they start a new "thread"—an exchange of e-mails—on a different topic. The original "conversation" is available simply by scrolling down the page of the new message.
The risk arises when the earlier topic and the thread relating to it involve different players, other deals, or otherwise do not relate to the topic, and the recipient forwards that message to a third party. If the person who receives the "old" conversation does not look carefully below your signature block before forwarding the prior thread to someone else, he or she may inadvertently send proprietary business or technical information or a personal conversation. The forwarding sender might have violated a confidentiality agreement in the process. Moreover, any attorney-client communication would lose its privileged status.
The prevalence of e-mail "communities"—public e-mail discussion groups consisting of hundreds or even thousands of anonymous participants—may compound the disastrous effects of such a mistake. Every day, forwarded threads containing private business information are "posted" to public e-mail lists by members sharing useful information that they have received from their business contacts and friends. It’s difficult to imagine a more effective way to embarrass yourself and everyone involved, and to ruin your reputation and credibility instantly. Who would trust you with anything, once they learn that you have done this with someone else’s private business or personal information?
So what should you do instead? Two mistakes contribute to this problem: (1) "Replying" to a message unrelated to the topic at hand, and (2) forwarding the new message with the inappropriate thread attached. First, always start a new message instead of replying to an old one. Some attorneys set up their e-mail programs so that the default procedure does not include the original message in the reply. Some lawyers go so far as to make it impossible for their recipients to forward the original message or include it in any reply. These default procedures may be impractical, however, when your colleagues and clients expect that every original message will be included in every reply.
Second, instead of simply forwarding a message, copy what you need from the text and drop it into a fresh message. Your recipient will appreciate it too, when the time comes to print out your message. Instead of printing out three or more pages of unnecessary, unrelated prior threads, the recipient will print only the text that matters.
4. Don’t Let Everyone on Your Side Respond to Every Message From the Other Side of the Negotiation
In the time it takes to strike a few keys and click the mouse, e-mail provides negotiating teams with the tremendous convenience of allowing everyone to be part of every "conversation." This time-saver can distort the negotiating process, however. Because every e-mail message becomes a permanent writing, slips or mistakes cannot be undone.
Information is everything in a negotiation—what information you get or give, and how and when, necessarily affect the outcome. By "speaking with one voice," or with carefully designated second and third voices on particular issues when appropriate, you better control what information your side discloses, and how and when. Allowing anyone on your team—whether another lawyer or a business person—to communicate with the other side without careful monitoring and control may result in inconsistent communications, and, at worst, confusion and inefficiency.
So what should you do instead? Designate one person through which all communications must go. Ask the other parties to send all messages, regardless of subject matter, to that person. Instruct your team that only the designated communicator may respond or delegate replies. Warn them that the other side may not honor your one-point-of-contact request, so all external messages should be directed immediately to your designated team member.
Software offered by several companies, including Legato Systems and Omniva Policy Systems, allows you to limit the delivery internally of e-mails received by the company’s server, based on who sent the message or key words in the text. This may reduce, but won’t necessarily eliminate, the risk. So be careful, make sure your team understands the problem, and assign someone to monitor e-mails in multiple-player deals.
5. Don’t Use E-Mail to Send a "Marked Up" Document From a Prior Transaction
This mistake results when negotiators, unaware of the functionality of most document revision tools, send draft agreements to one another as attachments to e-mail messages.
Most people don’t realize, unless they’ve learned it the hard way, how easy it is to transmit data from prior deals embedded in current transaction documents. With greater mobility of employees between companies, the senior business teams with your client companies may wish to use their favorite form agreements based on transactions they closed at another company. What they may not know, however, is that, even with the standard "show changes" tools, there may be more in an electronic form than meets the eye for those who know where to look.
For example, some corporate legal departments and law firms customize their word processing programs so that a "clean" (execution) copy cannot be printed without a password. You may not see the comments and revisions from a prior deal when you review the agreement on the screen, but if you print out the document, they will appear—allowing whoever handles a printed copy of the document to see the names of the parties and the terms of an unrelated transaction. What a gold mine that information could provide to the other side. You have probably also violated a confidentiality provision in the prior agreement.
This can happen with any document—even one without intentionally embedded text—if the sender of the document does not take care to create a "clean" document before distributing a draft. If this is not done, in addition to prior revisions, whatever may be in the "Properties" field in the File menu in Word can be accessed by the recipient. This may provide a variety of interesting facts about the history of a document, including the identity of counsel who may not yet be part of the negotiating team.
So what should you do instead? First, always create a clean document—by accepting all changes, checking headers and footers, and copying that text into a new document. Do not simply use the "save as" feature. Except for discussion drafts with current comments and revisions, never send any document without copying and pasting re-used text into a new document, and then checking it to make sure that it is free of any "metadata."
6. Don’t Use E-Mail to Send a "Marked-Up" Version of the Contract From Your Last Deal
This is not uniquely an e-mail risk, but it happens more and more frequently, now that people routinely exchange draft agreements using e-mail. They reason, "We’ve already done a deal like this, so we can use the same form, right?" No, wrong—if they intend to take the deal they signed and "mark it up."
The documents you used in the last deal, even if all the names and business terms have been changed or deleted, represent the end result of that negotiation. If you start with that document, unless it was very one-sided and not negotiated, your current deal can only end up providing less value and involving greater risk to your client than it should. In short, you have nowhere to go.
So what should you do instead? For recurring deals, create a good opening form that includes more than what the company expects to get—within reason, of course. You need something to "give" during the "give and take" of the negotiations—and you’re not likely to have it by marking up the documents signed in the last deal.
7. Don’t Respond Immediately to E-Mail Messages From the Other Side
Every experienced negotiator appreciates the importance of timing and pace in any negotiation. Using e-mail, however, creates the expectation, or at least the possibility, of providing instant responses to any communication received. Time management efficiency experts encourage us to "touch" each message only once, by responding right away and getting it "off the desk." Resist the temptation to do this.
Why shouldn’t you respond right away? First, you’ll send a better response if you slow down. Think over what you’ve just learned from the other side, consider alternative counterproposals, discuss them with your team, and then draft a careful reply. By taking your time you can also consider whether the issues raised are even appropriate for discussion at that point in the negotiation.
Second, quick responses become conversational. Many people, including attorneys, use a casual style as a matter of course in all of their e-mail correspondence. Any trial lawyer will tell you that the best way to get an adverse witness to tell you something interesting (i.e., something the witness probably should not disclose) is to make him or her comfortable. The more instantaneous and conversational the exchange, the more likely you are to say something you might otherwise, on further reflection, decide not to disclose.
Third, sometimes you need to cool off. When you receive a hostile or sarcastic message during a negotiation, you may be tempted to launch a reply-missile. That won’t happen if you pause before drafting and sending. Wait. You’re more likely to send a response that addresses the issues and keeps the negotiation on the right track.
Fourth, in most deals, you don’t want to appear too eager. A quick response may unintentionally (and incorrectly) communicate to the other side time factors that would otherwise affect the value involved in the deal. Instant replies may also set expectations for future turnaround times.
So what should you do instead? Take the time to think about and draft an appropriate response. If you can, set it aside to read again later. Of course, there’s no reason not to send a quick reply that doesn’t address the issues but acknowledges receipt of the message and promises to get back to the sender "shortly" (or even at a specific time). E-mail provides a unique vehicle for controlling the flow and order of the information you disclose. Use that to your advantage.
8. Don’t Click on the "Send" Button Too Soon (Or, Stated Another Way, Don’t Send a Message or Attached Documents That You Don’t Intend to Send)
This happens all the time. Who hasn’t received an empty or incomplete message, or one not intended for one or more of the recipients, or one with inappropriate documents attached?
Corporate help desks nationwide get millions of calls every day from panicked, embarrassed people asking how to retrieve messages they didn’t mean to send. It can be equally devastating to send as an attachment a document that has nothing to do with the transaction at hand, which may contain proprietary information the other side can use to its advantage.
So what should you do instead? Don’t fill in the "To" field until you have checked and rechecked the text as well as the recipients of your message. When replying to a message, before doing anything else, delete the name in the "To" line, and don’t add it back until you are sure you are ready to send. You cannot send a message with the "To" field empty.
To make sure that the correct recipient doesn’t inadvertently receive an inappropriate document, open every single attachment and review it before sending your message. Yes, it takes an extra minute, but the chances are good you’ll spot something in the document that needs to be changed—so for that reason alone, it’s worth it.
9. Don’t Write an E-Mail That Doesn’t Look or Sound Like a Business Letter
We all receive e-mail messages in business every day that are incoherent, in which the author has included little or no capitalization or punctuation, or has provided no contact information. Casual writing suffers from many of the problems noted above—it becomes "stream of consciousness" when dashed off quickly, and it may not accurately reflect the party’s position on the issues, or thoughtfully address the issues at hand.
Messages written in a more formal style are better formulated. They are easier to understand and more persuasively presented. And consistent use of correct business writing can influence the other side to do so as well, improving the process.
Clients may object, stating that in order to complete the transaction, they need to establish a friendly relationship with the other side. These two aspects of communication, however—making the personal connection as well as presenting the facts and arguments—need not be mutually exclusive.
So what should you do instead? Don’t write anything in e-mail, to anyone, for any reason, that you wouldn’t mind seeing on the front page of a newspaper or on a large easel in front of a witness box (where you, under oath, are responding to cross-examination).
E-mail is permanent. The "delete button" doesn’t delete permanently or irrevocably. You cannot go wrong in expressing your client’s information and arguments carefully and correctly. Model a good communication style, and urge your clients to fall in line.
10. Don’t Rely on Everyone on Your Team (Including Yourself) to Follow These Rules
We’re human, they’re human. Even when careful, we all make mistakes sooner or later.
So what should you do instead? Build in procedures to implement and enforce the one-contact-point rule, and assign an e-mail distribution and content czar to every deal.
There’s an old saying: "Learn from the mistakes of others. You don’t have enough time in your own life to make them all." How true this is, especially in the case of using e-mail in your negotiations. Be aware of all of these traps, and make it a habit to ask yourself before you send anything, to anyone, whether you could fall into one of them.
Finally, make sure everyone on your team reads this article.
A version of this article was originally printed in CEB’s California Business Law Practitioner, Winter 2002.
Internet Law and Practice in California
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