Imagine your document on the front page of The Financial Times, Wall Street Journal, Business Day, or another reputable publication, or being read out on CNN. This may be the single best way to stay focussed as you write.
Imagine yourself in a witness box in Court or before a Tribunal, being cross-examined about the e-mail or document that you are writing. This should also focus the mind!
Pick up the phone. Before sending an e-mail or creating another form of document or permanent record, consider whether it would facilitate communication and resolution of issues, particularly on sensitive matters, to have a face-to-face or telephone conversation. Written communications are frequently necessary, but in many cases, face-to-face or telephone conversations are not only more effective and efficient, but can also reduce the risk of written records being misconstrued and save the company the considerable expense of document creation and retention.
Stick to your expertise. The risk of a problematic document increases, for example, when an accountant comments on a marketing campaign, a marketing manager discusses accounting issues, or anyone offers an unsolicited opinion that something is “criminal” or “illegal.”
Prefer facts over opinions. Opinions are much easier to argue about or misconstrue than facts. For example, if someone says, "it's cold outside," a listener may find many reasons to disagree. But if the statement is, "it's below zero today," the only area of disagreement is a thermometer reading.
Think how a competition authority might view your words. Avoid language that could be misinterpreted, for example, by suggesting that you are co-coordinating any aspect of the company's commercial strategy with a competitor or that you are controlling your customer's resale prices. Claims that we "dominate" or are "dominant" in markets or can "control" our customers or "punish" or “eliminate” our competitors, or that the competition has “significant barriers to entry” are also unhelpful.
Use some forms of humour judiciously. Humour that prompts exaggeration can often be misinterpreted. Consider the comment, "the only thing that report is good for is my fireplace." Now consider the impact of that comment (which inevitably will be found and produced in discovery) if the report in question cannot later be found in the company's records.
Count to 10 as needed. Anger and frustration consistently yield poor word choices. For example: "I don't care how you do it. Just get it done"; "she is lying"; "this company will do anything for money." Simply put, correspondence and reports are never good places to vent.
Double-check the distribution list. Is everyone on the “to” line of your e-mail or memo critical to the communication? What about the “cc” and “bcc” lines? Omit recipients who aren’t necessary.
Avoid the use of company email for personal communication wherever possible. Company e-mail is intended for the conduct of company business. E-mails that are nothing more than personal communications with other employees or with persons outside the company will, however, have to be retained in the company’s electronic records for some period and may be subject to review and production in legal proceedings, particularly if the communication is in some way relevant to the company or its business.
Don't assume a message to a lawyer (in-house or external) is privileged. A document that is protected by the attorney-client privilege need not be disclosed in litigation. But keep in mind that a note to a lawyer is not automatically privileged. If the discussion concerns only business issues and no legal issues, there may be no privilege. Similarly, simply stamping the word "Privileged" on a document does not necessarily make it so. If you intend a message to be privileged, be sure that you address it to a lawyer and, in so many words, either ask for legal advice and/or state that the message is in connection with pending or anticipated litigation.
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