August 21, 2012
Many legal negotiations take place at least partially through e-mail exchanges. This can be quite convenient, but it ignores the fact that negotiations are highly personal interactions. It is difficult to have great personal interactions entirely in writing. Before persons begin to interact primarily through e-mail, they should talk at least briefly in person or on the telephone. Leigh Thompson and Janice Nadler have performed several interesting studies in this regard. Students were required to conduct negotiation exercises entirely by e-mail, but one half of the participants got five minute schmoozing phone calls before they had to negotiate. They then conducted their interactions through e-mail. The students with the brief phone calls behaved more cooperatively, reached more agreements, and achieved more efficient agreements than the students who had no schmoozing phone calls.
It is easier to say “no” via e-mail and easier to flame someone with a nasty response. When persons send a set of proposals via e-mail, they should telephone the other side within a day or two to hear their response. Do they have any questions or comments which need to be addressed? If no such communication occurs, the other side may read too much or too little into particular terms and respond negatively. Whenever someone feels frustrated by e-mail exchanges, they should not respond with a personal attack on the sender. If they are especially angry, they may prepare a nasty response, but must remember to click on “cancel” and not “send.” Once they send such an impertinent message, they will negatively affect their current interaction, and their reply can be shared with others adversely affecting their reputations.
When we prepare Word or WordPerfect files, electronic metadata contained in the underlying files record every single key stroke made – all deletions and modifications. When such a file is e-mailed to the other side, they may “mine the metadata” and observe every change which has occurred since the file was set up. Although the ABA and several State Bar Associations have said that it is perfectly ethical to mine such metadata, the New York, Alabama, and Maine Bar Associations have indicated that it is not since the senders were probably unaware of the underlying metadata contained in their files. They all agree, however, that lawyers have a duty under Model Rule 1.6 to protect confidential client information by eliminating the metadata. They can do this by using scrubbing software to cleanse files of metadata, by creating entirely new files and inserting the existing files into the new files which eliminates most of the metadata, or by sending PDF files which also eliminate most metadata.