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Email ROE

 

Ten Rules for Being a Rock-Star Operational Attorney

 
 
   
   
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(Credit: istockphoto.com/jossdim)

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The pen is mightier than the sword. As lawyers, we want to believe this. We must believe this. Words matter. Words have consequences. Words can damage just like weapons. Like a weapon, email can be quickly employed in the heat of passion, often without thinking, and with disastrous consequences. But unlike the sword, where we have rules of engagement (ROE) to guide its use, we have no rules for the use of email.

The twenty two rules that follow are principles for the effective employment of email. These rules should not only help you avoid embarrassing mistakes, but also help you better leverage this powerful tool.

1. Don’t Do It—Email Is Probably Not the Right Medium.

Although sent almost continuously, email is rarely the best medium for effective communication. In general, face-to-face communication is the best. Voice communication alone, such as by telephone, is less desirable but sometimes necessary because of timing and location. Written text—including email—is the worst. Written text forfeits the ability to communicate using visual cues such as facial expressions and body language. If written text is absolutely required, then drafters must spend the time necessary to ensure that they convey the appropriate message, tone, and emotion. Words can mean many things to many different people.

Before you even draft an email, ask yourself, “How can I better connect to the recipient?” If there is only one recipient, can you call him on the phone, or even better, go to his desk to chat? If there are multiple recipients, can you hold a meeting or facilitate a conference call to share the information? By doing so, you can improve the quality of communication and obtain immediate feedback.

2. Use Email for Short, Administrative, Non-Emotional Communications.

Email is appropriate for efficient, and sometimes broad, distribution of administrative materials, such as memorialization of meetings and updates on routine schedule changes, or distribution of non-controversial information. Just as an infantryman would use an M4—and not a Javelin—to engage dismounted enemy personnel, so should good attorneys and staff officers use person-to-person communication—and not email—to share difficult, emotional, or controversial materials.

3. Clear, Concise, and Correct.

Army Regulation (AR) 25-50 recommends against using written text as the primary method of communicating, noting, “Conduct official business by personal contact, telephone, or Defense Switched Network (DSN) whenever possible and appropriate.”1 Additionally, AR 25-50 requires Army writing be “clear, concise, and effective. . . . The reader must be able to understand the writer’s ideas in a single reading.”2 This directive applies to email. Use short, direct sentences that the reader can comprehend after a single reading.

Email is a horrible medium for nuanced issues requiring long, thorough discussion.3 Readers expect emails to be short, precise, and clearly to the point. Just as fast food restaurants do not serve five course meals, neither should email drafters send long, complicated messages. There are other—much better—mediums for that form of communication. Use the right ingredients in your email recipes: clear, concise, and correct prose.

4. BLUF It!

Many readers appreciate the use of a Bottom Line Up Front (BLUF) in an email. If you need more than a short, one-sentence BLUF to summarize your message, then email is not the proper medium. Find the proper medium: perhaps a face-to-face communication or a legal memorandum in which you can thoroughly address nuanced issues.

5. The Subject Line Is a Mini-BLUF.

A subject line that provides most of the relevant content is the ultimate in clear and concise communication. For example: “SUBJECT: Calendar Change—CPT Smith Award Ceremony Rescheduled to 6 JUL at 1500.” Failing to properly use a subject line is like failing to effectively employ a weapons system. Use all resources available to communicate effectively.

6. Do Not Use Email to Make Time Sensitive Changes.

No matter how many exclamation points and read receipts you use, email fails in communicating real time changes. If something has a short suspense, deliver the information face-to-face or by phone.

7. Remember Mobile.

Many of your recipients will be reading on mobile devices—especially our more senior ranking clients. Always write for a mobile device reader when you draft. Although modern mobile devices can open most kinds of attachments, have you ever tried to review a slide show presentation on a four-inch screen? Not fun. Plus, your reader will probably only read a few slides or pages before giving up and cursing you for not summarizing the attachment in the body of the email message.

If necessary to include an attachment, and there is any chance a reader may be on a mobile device, summarize the attachment for the reader. If needed for clarity, cut and paste key sections from the attachment into the body of the message.

Even if you know the reader will be on a desktop or laptop, make clear to the reader the general content and importance of the attachments. A short one or two sentence summary of each is often helpful. Your reader should never open an attachment unsure of what she will find.

8. Don’t Do Humor in Email.

Really. You are not that funny, especially in email. Remember Rule 1—text lacks most of the communication cues found in voice or body language. Your intended reader may not realize you are joking. Additionally, your “joke” could be forwarded on to others who have no idea that you may be attempting—and likely failing—to be funny. At best, your joke will fall flat, reducing efficiency. At worst, you could offend a recipient. High risk, no reward. Do not do it.

9. Assume Your Email Will be Forwarded.

You lose all control of your message once you hit send. Assume it will be forwarded to everyone you would rather not read it: the opposing counsel, the judge, the media, your mother, and your father. Email is not the place for negative personal comments. Assume any such unprofessional comments will find their way to the subject and irreparably harm your relationship.

10. Remember that Email Is Releasable Under FOIA.

Everything you type on a government computer or send through a government email system is potentially releasable under FOIA (as well as subject to subpoena).4 Before sending, or even drafting, think about your message being published by your favorite—or least favorite—media outlet. Including a boilerplate attorney-client disclaimer at the bottom of your email will not protect you from embarrassment if the material is not actually protected by an attorney-client relationship. If you would not say it publicly, think hard about putting it in email.

If your communication is truly protected by attorney-client privilege, then should you be having the conversation in email at all?

11. Proofread One Time for EACH Recipient.

That is, if you are sending the message to five people (counting both the TO and CC lines), then you should proofread it at least five times. If at all possible, get others to review and edit your messages before sending. The wider the distribution, or the higher the rank of the recipient, the more editing and proofreading you should do.

A professional, error free message is important for building and maintaining credibility. Errors in email messages cause readers to perceive the “writer to be less conscientious, intelligent, and trustworthy.”5 Not a reputation you want to develop.

12. Carefully Check the Distribution Lists.

Are the right people on the list? Is anyone not on the list that should be added? Will recipients on the list perceive this as unnecessarily clogging their inbox? Plus, be sure who you think is on the list is actually on the list. Outlook likes to autocomplete addresses—but Outlook might correct to John Smith when you wanted Joseph Smith. This could be bad, very bad. This could even violate your professional ethics if the wrong Smith is on the other side of the “v.”

Personally, I screwed up several times and sent emails to the wrong Sexton. Oops. Thankfully, those emails were administrative, non-legal, and not sensitive, but I was lucky. After doing this way too many times (once is too many, really), I figured out how to delete the “wrong” Sexton from the Outlook autocomplete library. When you begin typing a name, Outlook autocomplete will bring up multiple possibilities. Use your mouse to click on the “x” beside names you would like to remove from the autocomplete list. I did this and have not sent an email to the wrong Sexton since!

13. Do Not Assume Message Recall Will Work.

It probably won’t. Once sent, email is gone forever. Someone on the distribution list will probably open your email within seconds. You cannot un-ring that bell.

14. Never Send (or Even Draft) an Email When You Are Mad. Likewise, Never Use All Capital Letters Because That Symbolizes Yelling and Anger.

Remember the ROE, email is for non-emotional administrative communications, not for heated discussions, or worse, personal attacks. We have all seen email disagreements escalate through tit-for-tat exchanges, each party becoming less rational and more emotional with each message sent. While some may find these exchanges mildly entertaining, the exchanges remain unprofessional, unhelpful, and ineffective.

The Operational Law Handbook notes that one purpose of ROE is to “provide a limit on operations and . . . not trigger undesired escalation, i.e., forcing a potential opponent into a ‘self-defense’ response.”6 That is the purpose of this rule. If you ever start to feel emotions—especially anger—creeping into your email, STOP. Close the open message on your computer. Pull out your CAC card. Go for a walk. This is good for you, the other party, and your unit.

If you find yourself angry and you want to “write it out,” take a page from President Lincoln. Known for writing unsent angry letters, President Lincoln would write (in longhand, of course) an angry letter addressed to the other party (General Meade in one particularly well known example). Lincoln, however, would never sign or send these angry letters.7 Channel your inner Lincoln next time you feel dragged into a tit-for-tat email exchange: Find pen and paper; write (in longhand, just like Lincoln) your angry letter. Then put it in your desk drawer. Think about it overnight. You will see the matter differently the following day. While not sending an angry email may deprive those on the CC line of some cheap entertainment, it will prevent damage to your relationship with the other party, keep the tone of conversation professional, and set a good example for others in your office.

15. Think Hard Before Adding Your (or the Recipient’s) Boss to the CC Line Because You Are Upset.

Adding a boss to the CC line will rarely build the relationship between the parties. If you really think you should add a supervisor to the conversation, take the following steps. First, call or visit the other party. Talk to the person about your concerns. Listen to their concerns. Recognize you may not know everything about the situation. Second, think about it overnight. Follow the Lincoln example, and handwrite the angry message. Third, talk to a mentor or your supervisor before escalating, and explain to them what happened during your person-to-person conversation with the other party.

16. Keep Evaluations and Email Separate.

Email is not the appropriate substitute for OER and NCOER counseling. This is especially true if an evaluation is unexpected, unwelcomed, or career-ending. Using email to shield yourself from difficult conversations is not leadership; it is cowardice.

17. Never Use BCC.

Violate this rule at your own peril. If someone should be included in the conversation, then include her in the conversation. If her inclusion would upset someone, then address that bigger issue first. Email is for efficient distribution of administrative material. Fix the relationship; do not use BCC or other email features to cover for a dysfunctional relationship. Plus, assume the BCCed person will hit “REPLY ALL” to the email, outing you for using BCC. If you want to add someone to the conversation, own that decision.

18. Include the Most Recent Message in Any Response.

When responding to someone, always include the triggering email. If necessary to include a chain of emails, summarize the content, especially if sending to a superior. Never say, “See below.” If you insist on forwarding a chain, be sure to summarize the message(s), perhaps even pasting the key provisions into your email. Your reader’s time is valuable.

19. Have a Signature Block—and Include Your Phone Number.

Always include your signature block with your phone number and email address on every message. Set up Outlook so that every email—responses and new messages—includes your standard signature block with phone numbers. If you do not know how to do this, ask your IT support. Additionally, consider having a different signature block for civilian recipients. How many civilians know what DSN stands for? Or what a LTC is?

20. Acknowledge Direct Emails.

A simple “got it” or “thanks” lets the sender know that you have received the message. This is much more than just about acknowledging tasks from your boss. Providing an acknowledgement will build goodwill. Remember, use email as a tool to build and cultivate relationships. If someone called to remind you of an event, you would certainly thank her for the reminder. Do the same with email.

21. Do Not Forward General Officer Emails.

Just don’t do it. Nothing good will come of it.

22. Do Not Send Emails Outside of Duty Hours (Especially to a Subordinate).

If something is urgent after duty hours, call or go meet with someone. If the issue is not urgent, do not send the email until the next duty day. Your subordinates are checking the sent times. Telling them you do not expect a response is poor leadership that fails to recognize that perceptions matter. Your subordinates’ perception is that their boss is working late (again?), so they will do the same . . . until their spouse encourages them to seek employment elsewhere.8

These were just a few thoughts on proper use of email. Like weapons, emails can cause great damage. They can also be very effective. Follow these rules to avoid professional embarrassment and to improve your use of email as a communications tool. Email is not going away; we need to use it effectively. But we need to remember there is usually a better medium for communicating the message and building the relationship. Whenever possible, communicate in person. If not possible, communicate by phone or VTC. If written text is required, consider a deliberate, well-written memorandum for anything more than short, administrative messages. TAL

 


LTC Linneweber is the chair of the Administrative & Civil Law Department at The Judge Advocate General’s Legal Center and School, in Charlottesville, Virginia.



Notes

1. U.S. Dep’t of Army, Reg. 25-50, Preparing and Managing Correspondence para 1-7a (17 May 2013) [hereinafter AR 25-50].

2. Id. para 1-10.

3. Legal advice must often be long, nuanced, and thoroughly analyzed. Email is almost always the wrong venue for legal advice. See Brigadier General Charles N. Pede, Communication Is the Key—Tips for the Judge Advocate, Staff Officer, and Leader, Army Law., June 2016, at 4, 6.

4. U.S. Dep’t of Def., 5400.07-M, DoD Freedom of Information Act (FOIA) Program (Jan. 1997).

5. http://theconversation.com/why-grammar-mistakes-in-a-short-email-could-make-some-people-judge-you-57168.

6. Int’l & Operational Law Dep’t, The Judge Advocate Gen.’s Legal Ctr. & Sch., U.S. Army, Operational Law Handbook 78 (2017).

7. Maria Konnikova, The Lost Art of the Unsent Angry Letter, N.Y. Times (Mar. 22, 2014), https://www.nytimes.com/2014/03/23/opinion/sunday/the-lost-art-of-the-unsent-angry-letter.html.

8. An advanced feature of Outlook is the ability to use time delayed sending. Draft the message now, but have Outlook send it at 0830 the next morning. See your G6 support personnel for assistance. https://support.office.com/en-us/article/Delay-or-schedule-sending-email-messages-026af69f-c287-490a-a72f-6c65793744ba.