What does that mean you might ask. As an attempt at a definition in the present context: ‘having regard to what the future holds for letters or emails which you create’. The context is that of a contractual relationship. In every contractual relationship you should be aware of the future implications of every letter or email that passes between parties – they create a permanent record which may potentially be used as evidence if there is a future difference of opinion, a dispute, even ultimately in court. Is it unrealistic to suggest that you go through your business’ relationships constantly wary of what you put in an email in case you subsequently fall out with the other party? Maybe. However it is recommended that in a contractual relationship you should have an awareness of the future possible uses of emails and letters. Try to include sufficient context in significant correspondence such that if that email or letter was to be viewed in isolation, it couldn’t be construed to your detriment. As naturally as possible, work in the necessary statements which could become relevant should the subject matter become one of dispute. Be careful what you put in all emails. If a dispute happens you may find strangers will be sifting through a pile of your email correspondence, exhibiting your emails in open court and making it all available for public scrutiny. Picture a judge trying to determine what was really meant by the somewhat colourful and emotionally charged one-liners fired off some 3 years back.
- What is the intention of the letter or email?
- What are the possible implications of the words used?
- Can its content be used to your disadvantage at a later date or in different circumstances?
- If something went wrong and it was before a judge or arbitrator, would it give the impression of a reasonable, clear-thinking person whom the said judge would believe credible over the people on the other side? Or would it seem indicative of a sloppy, cavalier juvenile or confused nerd?
As a case in point, this technique can be very important in the early stages of contract formation – in the ‘Prudence in pre-contract negotiation’ article the situation is described where customers will sometimes lead you on, draw as much information from you as possible and have you expending resources without commitment on their part, and it is pointed out that you would not be able to claim for your costs for any pre-contract award activities. So – using the ‘clairvoyant correspondence’ principle, work in to any emails or letters words which would provide the necessary evidence to be produced later if required -such as referring to “the contract” and “as you know I am proceeding with the work as we agreed….” .
Nothing in this awareness article is intended as legal advice. If you have a specific legal requirement or query you should consult a solicitor directly.