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The Newly Independent Solo: Covering Your Hide By Keeping Things In Writing

One thing they don’t teach you in law school, but that I discovered very early on in my practice is the value of protecting your hide, and the best way to do it. There are a lot of peculiarities to the legal industry, but chief amongst those is the fact that your career may occasionally depend on your ability to demonstrate – in writing – what it is you told someone else. This is true whether you are an attorney working for a big firm, an associate at a boutique law office; or a solo practitioner. It’s also true whether you are communicating to witnesses, support staff, opposing counsel, a managing attorney, associates, court personnel, or even clients. The bottom line is that as often as possible you want to have your conversation documented in writing.

Approaching my practice with this in mind has saved the day on more than one occasion. For example, on one occasion my discussions with opposing counsel was distorted in a signed declaration by the opposing counsel submitted to the Court in support of a motion that could have adversely affected the outcome of that case for my client. As it turned out, those conversations were particularly important to the determination of that particular motion. Thankfully, our conversation was conducted via email and I was able to appear in Court with a print out of the email to demonstrate that the conversation in question was being heavily distorted. It made the difference and the Court found in my client’s favor. On at least a couple of other occasions earlier in my career I’d wished that I’d had the same foresight.

Communicating with colleagues, clients and support staff via email, for example, helps in other ways as well. When you receive instructions or information from a client verbally it can be very easy to later forget what was discussed. Even if you are taking notes you may find yourself in a position where you are having difficulty deciphering your own notes. Email provides you with an easy way to look back and review the information you received a second time. It works the other way too when you are providing information to your support staff or a colleague. By providing them with the information in writing they can also refer to that email to refresh their memory if they forget your instructions.

Communicate Via Email

For the reasons I mentioned above, email is my preferred method of communication for all business-related discussions. I call my parents on the phone. I call my wife on the phone. But, call me paranoid, I’d rather not take important calls on the phone. Instead, I send emails to clients, opposing counsel, and colleagues. This way our conversations are in writing and there is a record of our discussions. When dealing with opposing counsel, this prevents the unscrupulous in our profession from distorting important conversations. When disagreements arise between you and your coworkers about who had agreed to do what and when, it helps to have it in writing. And in the event you ever have a disagreement with a client about what was requested of you or what you were told (and it does happen occasionally) it’s helpful to have those discussions in writing. It could even prevent or save you in case of a malpractice claim.

Send Confirming Letters

Obviously you don’t just send information to people, but you also receive a lot of information in your practice. As a result, even though you may prefer to communicate via email, you’ll nonetheless receive telephone calls from others. It’s my opinion that it is best practice to follow up with important conversations with confirming letters. Depending on the circumstances, these letters may be formal or informal and may be sent via email or by regular mail.

For example, if you are communicating with opposing counsel or a co-defendant and important information is discussed in person or over the phone, I believe it’s always appropriate to send a formal letter confirming the substance of the conversation: “This letter is to confirm that during our conversation {place where the conversation took place} this morning, you told me that {the important information discussed during the conversation} and that this would be completed by {the relevant date}. If anything in this letter doesn’t reflect your recollection of our conversation, please contact me via email as soon as possible to further discuss this matter.”

Obviously if you are dealing with colleagues or a client, social etiquette might suggest that it’s awkward to send such a formal letter. Nonetheless, I still recommend sending informal emails recapping our conversations: “Thanks for discussing {case name} with me. I appreciate it. As I mentioned when we spoke, we need to have this done by {date} and it needs to include {other important information}. Let me know if you need anything from me in the meantime.”

Is there anything I forgot? Or are there any reasons why you prefer to communicate by phone? Let me know in the comments.

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