Technology is a wonderful thing — it has allowed businesses to be more efficient and communicate more effectively. First we had voice mail, then we had email, now we have texting and photo messaging, and the list goes on and on.
In the legal field, where change happens slowly, technology has clearly improved the practice of law. There is Internet access in the courtroom, real time transcription where lawyers can exactly see what is being transcribed as witnesses are on the stand in court or in deposition. We have courtrooms that are wired for computers and projectors to enhance the experience for jurors to view the evidence as it is being presented in court and we even have the efficient use of visual graphics on big screens and videotape depositions.
Although technology has had many positive impacts on business and the law, email has had a devastating impact on the litigation front. Email messages are seen as “smoking gun” evidence and juries are reacting with shock and awe in what is found in emails and are awarding huge verdicts against large corporations. Emails have rocked many a sound corporate defense by the tone and content of what is found in email discovery.
With technical advances come problems and the business world is no exception. Before we examine closely the problems with emails and some potential solutions let’s take a flash back to the 1960s and see if there is some learning that can be used from one of the most shocking documents to hit a civil courtroom.
The Infamous Ford Pinto Memo
In the late 1960s and early 1970s, domestic automakers were going crazy trying to respond to the VW bug and Ford was on VW’s heals with its response, the Ford Pinto. On the eve of the Pinto launch in 1970, Ford’s engineers determined there was a problem with the gas tank and it would cost $11 per vehicle to fix the problem with a rubber gasket. That was the good news–the bad news was that to make that change Ford would miss the launch of the Pinto for another year to re-engineer the gas tank and re-tool the factory assembly lines.
A February 2010 New York Times article recounted the Pinto debacle:
The Pinto was introduced in the 1971 model year as competition to the small, affordable cars of the period, like the Chevrolet Vega and the AMC Gremlin. The Pinto sold well, but it had safety issues, specifically the charge that its gas tank ruptured and caught fire in rear-end collisions. In 1977, Mark Dowie wrote an exposé for Mother Jones claiming that Ford knew about the Pinto’s problems, but declined to recall the cars and install an $11 plastic part because “cost-benefit” analysis showed settling burn victims’ lawsuits would save the company more than $70 million.
A key piece of evidence was an internal memo titled “Fatalities Associated with Crash-Induced Fuel Leakage and Fires.” Mr. Dowie says today he dug it out of a filing cabinet at the Transportation Department. The memo assigned a cost of $200,000 per burn death and $67,000 per serious injury. “It was an obvious smoking gun,” Mr. Dowie said.
That document would become the unraveling of corporate innocence; it shocked the judicial conscious in courtrooms across America. Juries were outraged that Ford would place a value on people’s lives just for the almighty dollar. Typical jurors wanted to believe that corporations would take into consideration safety and would never put a product on the market knowing that it would injure a customer, the Pinto memo ran in complete opposite to jurors’ expectations of corporate America.
There were scores of lawsuits against Ford, and what shocked every courtroom was the Ford Pinto memo that outlined the thought process of Ford. It reduced each victim in each courtroom across America to a simple statistical value. Even typical defense oriented jurors would not defend Ford’s conduct. Jury verdicts were in the tens, twenties, thirty, and forty millions of dollars. Most of the verdicts came with a very large punitive damage award to punish Ford for its callous disregard for the lives of its customers.
What is the problem with emails?
Like the Ford Pinto memo, emails can have that same shocking impact and there are plenty of employees across America putting highly inflammatory content in those emails. Let’s examine the problems with emails and some solutions to the perplexing email dilemma.
There are several problems with emails that make them very different than normal documents in any litigation.
First, emails are written communications between two or more persons, so it’s not like a memo or letter that was sent to someone with no response. Some jurors see emails akin to a tape recording of a phone conversation since there is back and forth on the email string. So the impact of email is much more dramatic than a normal document that you need to explain away in any typical case.
Second, emails place communications in specific times and places to put jurors in the contemporaneous moment. That can be good and bad depending on the content of the emails.
Third, emails are many times causally written and quickly drafted without a lot of thought in them. It’s all too often like “Emails Gone Wild” with what people write in emails. Most employees have no idea that emails stay in existence forever. They see it disappear from their computer screen and presto, the email is gone and that is that. Wrong! People will say things in emails that they might not otherwise say either face-to-face or in a more formalized letter or memo correspondence. Back before email, correspondence was much more formal. People would dictate something to their secretary, it would get typed up, and during that time executives had time to think and re-think their positions. They would then get the document for review and have an opportunity to cool down potentially and structure his language exactly how they wanted it to be communicated. That has all changed with email. People flash responses back and forth within moments of each other on serious topics that ultimately (fast-forward to lawsuit) bode poorly for the defendant in a litigation battle.
Fourth, the volume of email traffic is unwieldy and most executives will either ignore many emails, especially if they do not want to respond to a difficult email, or simply do not put the proper concentration, attention or importance to the email communication at the time.
Fifth, back before email was the normal course of communication, the litigation practice had a limited number of key or troublesome documents. Now, litigation teams are confronted with huge volumes of emails that need to be evaluated for content and relevance.
Sixth, now that email is so popular, communications between parties are documented with back and forth understandings and internal discussions about key and relevant topics are also documented for the trial. It is less likely now to have someone on the stand recounting the phone conversation between two people and more likely to have that same person on the stand explaining what he/she meant in their email correspondence.
How to deal with troubling emails
Some of the characteristics that make email problematic can also be used to explain away troubling emails. However, when witnesses try to distance themselves from their emails, by saying, “I don’t recall that email,” or “I have no idea what I meant when I wrote that email,” jurors see that as not believable testimony and view that witness with an untruthful eye.
Here are three essential tips for dealing with emails before and during a trial:
- Prep your clients with the full body of emails relevant to a case before depositions and trials. You and your client must be aware of all emails-the good, the bad and the ugly-so you can prepare a compelling case.
- Review potentially damaging emails with your client and have the client characterize and redirect the true meaning and nature of the email. Emails are all too often written quickly and sometimes the tone or informal nature of an email does not reveal the ideas behind it.
- Make sure the characterizations of emails are in context of the overall case-you need to be very careful about defining the timing of an email and who was the author or recipient. For example, if your client received an email months before a corporate decision and he was one of 30 people on a list, that is far less damaging than if he authored an email and sent to a group authorizing specific actions.
I work with clients every day on the complex issues of email discovery and jury communications, and I would be glad to discuss your jury research needs.
For more than two decades, my firm has worked with attorneys across the country on a broad range of complex litigation, including all types of IP cases. I would welcome the opportunity to talk with you about the competitive advantages of jury consulting.
Mark T. Gerard, M.A.
President, The Litigation Group