Article reprinted by permission of Construction Connection who grants permission to use this copyrighted material solely for non-commercial, instructional, personal, or scholarly purposes. Redistribution or re-use of this copyrighted material without permission of the copyright owner/s is prohibited.
From the fountain pen, to fax machines, to email, profound advances in technology have brought us to an era where instant messaging is the norm. Technology has dramatically changed the way and speed in which we communicate. Not surprisingly, modern construction contracts frequently acknowledge that the parties will communicate electronically, and many contracts provide specific protocol for the transmission and sharing of electronic information. The electronic exchange of project information can provide substantial benefits to the project team in terms of efficiency and productivity. Whether by email or by computer-to-computer File Transfer Protocol, electronic transmission of submittals, shop drawings, applications for payment, RFIs, field instructions, notices, meeting minutes, and routine project correspondence can result in significant time and cost savings.
Email is now quickly and easily accessible 24/7 on desktop computers, laptops, iPads, tablets and smartphones. Because of this, there is a tendency to use email more frequently and less carefully than more formal means of communication such as writing, stamping and mailing a letter. Your project team should be reminded that every email they send or receive on a project will become part of the project record and may have to be produced to an opposing party if there is a construction dispute arising out of the project and litigation or arbitration ensues. Therefore, it is important to establish clear polices regarding your project team’s use of email. Also, it is critically important to train your project team regarding the proper and effective use of email and email practices that should be avoided. As you develop your company policy and train your project team, keep the following points and suggestions in mind.
Avoid being self-critical in internal email communications
If litigation or arbitration arises out of the project you can be certain that the opposing party will look for and try to use any internal email communications where your project personnel are critical of their own performance.
Keep it professional
If you would not say it in a letter, then don’t say it in an email. The speed and ease with which one can send an email has a tendency to encourage a much more informal and sometimes less professional level of communication. Even if your message does not require the formality of a letter, keep all of your project email communications professional. Rigorously adhere to this rule in your email communications with those inside your organization as well as with those outside your organization. In addition to keeping your message professional, you should also avoid using email template backgrounds, uncommon, whimsical or colorful fonts, and all caps. Quirky email backgrounds and odd fonts may detract from your message in addition to making your email very difficult to read. The sender’s use of all caps is frequently interpreted by the recipient as the sender yelling at the recipient. If you must yell, I suggest that you do so privately, perhaps in a forest, and keep it out of the project record.
Use the Subject line
Always quickly and accurately convey the substance of your message that will follow. On a daily basis, project participants are bombarded with email. Managing email messages can be a challenge. Given the volume of email messages that are sent and received, important messages can easily be missed. What can the sender do to increase the likelihood that an important message gets opened and read and decrease the likelihood that it will be missed? You need look no further than the Subject line. By using the email Subject line to quickly and accurately convey the substance of your message that will follow, you will accomplish three things: (1) alert the recipient to why he or she should open and read your email message; (2) allow the recipient to prioritize which email messages get opened and read immediately and which can wait until later; and (3) allow both you and the recipient to organize, file and later easily retrieve important email communications.
Just give ’em the facts, not feelings
Because your email communications become part of the project record, your contemporaneous email communications may later become critically important in establishing what actually happened during the course of construction. If used correctly and consistently, email communications can be a very effective tool in documenting important events or discussions on the project and later resolving a construction claim or dispute. Document the facts, all the facts, and nothing but the facts. Trotting out your feelings or emotions in an email will often come back to bite you. Avoid legalistic and antagonistic language. Avoid judgmental comments. Avoid personal attacks.
When upset or angry, rigorously adhere to the 24 hour rule
Follow the Biblical dictum to “be quick to hear, slow to speak, and slow to act.” The Sixteenth century Spanish author Miguel de Cervantes Saavedra wrote, “The pen is the tongue of the mind.” There is an automatic link between one’s feelings and the ink one spills on paper when angry. If an event on the project or an email received has left you upset or angry, resist the temptation to respond immediately. Avoid escalating the conflict. If a response is required, wait 24 hours before responding. I suggest that you read the article: Ditch the iPad and pick up paper and pen. Handwrite your nasty notice letter and then sleep on it!
Keep the content of your email messages to a discussion of one project
Just as you would do with any letter related to a project, you should draft your email messages with an eye toward keeping all project-related email together in a single project correspondence file. Microsoft Outlook allows you to create separate electronic folders that can be used to organize your email communications by project. A project-related email message that also contains a discussion of issues on an unrelated project will clutter up the project record and may later create confusion regarding what happened on the project. An email that seemed innocuous or unimportant at the time, but later becomes critical to resolving a claim or dispute, may be forever lost or very difficult to find if the email gets filed in the electronic folder for an unrelated project simply because it discussed the unrelated project. It is also a good practice to begin a new email string if your email communications turn to a different topic on the project.
Always assume that deletion of an email message will not prevent its later recovery
Assume that a project email message, like plutonium, is forever. Email messages are typically captured and stored as part of routine computer backup operations. Deleting an email message from one device will not prevent later recovery of the email. Deleting or destroying project email communications after a dispute arises will only create harmful negative inferences and other problems. If you reasonably anticipate that a claim or dispute will end up in litigation in a court that has adopted electronic discovery rules, you have an affirmative duty to preserve all relevant documents including project email communications and other electronically stored information.
Put it in a letter
If your message addresses a critically important issue on the project, then abandon the informality of email communications and send a letter. That does not necessarily mean that you must abandon email as the mechanism to transmit the letter. You can save, scan or otherwise convert your letter to a PDF and send the PDF as an attachment to your email, with your email simply serving as your transmittal. A formal letter, whether stamped and mailed or sent as a PDF attached to an email, will typically be viewed by the recipient as being much more important than an informal email message and is thus more likely to get the attention that you are seeking. Of course, if the contract, surety bond, state statute, federal statute, etc. requires certain correspondence, such as certain notice letters, to be mailed, faxed or transmitted by means other than email then you must follow the stated requirements.