Emails and Texts
By Mitchell S. Milby
Pain is temporary, glory is forever, except that when it comes to texts, emails, internet posts, and the like, both pain and glory are forever. Once you write it, it never goes away. What does that mean for you? Think before you press send. The effects if you fail to do so can be disastrous or most excellent.
When should you write? Good examples of things to record include:
- meetings (notes – be sure to circulate these immediately after the meeting);
- communications (when the client, contractor, etc., says something verbally, follow up with an email confirming the conversation, the actions items, if any, and who will do what);
- site visits (provide all notes, photos, etc. to your client);
- scope changes (yes, you can agree to scope changes, waive services, and add services via email);
- nonconforming work (report at the time); and
- substantial completion.
These are only a few examples.
Furthermore, I cannot emphasize the importance of good recordkeeping. Have you ever wondered why two people can have a wildly different memory of what actually happened? Studies have consistently shown that our memory is false more often than not. Memory consistency reportedly has a striking 60% decline, which means that approximately 60% of our memories change over time. For more information on the topic, I suggest listening to the Revisionist History episode, “Free Brian Williams” at http://revisionisthistory.com/episodes/24-free-brian-williams. I can personally report instances where 2 people routinely took project meeting minutes, compared their minutes, and found that their minutes did not match – even though each took the notes during the same meetings. Therefore, best practices dictate that you take the meeting minutes, you confirm verbal communications with a follow-up email, you take notes as part of your site visits, and, as soon as possible after the event, you also distribute the minutes, you send the follow-up email, and you send your client your notes from your site visit and, if appropriate, solicit any comments or changes at the same time.
It Can and Will Be Used Against You
If you are wondering “what should I write,” keep in mind that anything you write can and will be used against you in a court of law. If you’re ever in a lawsuit, one of the first things your attorney will ask you is to “send the file over.” This includes each and every email, text, or other writing that you made. I always ask for this because I must know what the other side will use against you. Yes, the other side has your emails, text, etc., too because – spoiler alert - the recipient of those emails likely kept them. So please don’t think you can “wipe the drive.” That strategy never works for us ordinary people. I can recall at least one lawsuit where my client sent an internal office email describing their client (who became the plaintiff) in less than flattering terms using language that would make my mother blush. What’s that saying - hope for the best but expect the worst? Sure enough, the other side used that awful internal office email at my client’s deposition. It did not go over well and painted my client in a very, very bad light. The lesson - if you have something unkind to say, either don’t say it at all or at least say it in person so you minimize the chance of it being recorded.
Various Forms of Contracts
Finally, even if you think you don’t have a contract because you didn’t use a signed, written agreement, you do if you provided services – moreover if you billed for your services. A contract can be as simple as an offer and acceptance of that offer (good reason to put an expiration date on any proposals you make). The form of the communication generally doesn’t matter. A contract can be formed verbally or by any written exchange. Similarly, a contract can sometimes be changed by any verbal or written exchange. Emails and texts can be as effective as formal memos and can even form or amend contracts. I recall one matter where my client was hired via email. The scope unfolded slowly like a suspense novel – over several emails. My client’s scope of services was a critical to our defense, so we spent a significant part of our case clarifying what or scope was and wasn’t (Texas allows an architect to limit its scope of services via contract). After 3 years of litigation and a 5 week jury trial (plaintiff would not settle), the jury agreed that with us that the cause of the damage was not the result of anything that was within our scope of services. It could have been much easier (and less expensive) to resolve had the scope of services been described in one place – a signed contract.
In short, your writing – good and bad - can impact your architecture practice. The pain of that bad email or text is forever, or, if managed properly, the glory of the good email or text can be yours. Check statutes of limitations in the state(s) where you practice.
The author, Mitchell S. Milby, is outside counsel for architects and engineers. He is involved in all phases of project development: company formation and transition planning, contract drafting and negotiation, and litigation/trial. Mitchell is an ongoing guest lecturer for the Department of Civil Engineering at the University of Texas at Arlington. He received the AIA Professional Affiliate of the Year Award (2012) and the Consultant Award (2019) from the Dallas AIA chapter. His received a B.A., cum laude, from Vanderbilt University and a J.D. from Northwestern School of Law, Lewis & Clark. He is a 2018 & 2019 Super Lawyer® and has the highest rating, 5.0/5.0, from Martindale-Hubble™ (national attorney rating for ability & ethical integrity).
For more information, contact www.milbyllc.com, email@example.com, or 469-358-9610.
(Return to the cover of the 2020 PM Digest: Architectural Writing)