Month: June 2020

E-mail Disclaimers

It’s smart to include disclaimers in all your e-mail messages, right? A friend of mine summarized her advice at a CLE conference a few years ago as “Disclaim, Disclaim, Disclaim.”

Is it really that easy? Disclaimers have their place, but don’t expect too much from them.

A Lawyerist article entitled This Post is Privileged and Confidential has some good observations on the nearly ubiquitous disclaimers in e-mail messages:

There are several problems with these disclaimers, aside from cluttering up email threads. For one, attorney-client privilege and confidentiality are not the same thing.  Without digressing too much, suffice it to say that while all attorney-client privileged communications are confidential, only a small portion of the client information lawyers are required to treat as confidential is also privileged. Another incongruity is that an email intentionally sent from a lawyer to almost anyone except a client will not be confidential or privileged at all (setting aside agents or experts the lawyer may be contacting on the client’s behalf or negotiations subject to a confidentiality agreement or rule).  So for the vast majority of emails that lawyers send — to colleagues, to witnesses, to vendors, to friends, to listservs, etc. — the disclaimer is meaningless.

Undermining Disclaimers Through Overuse

Which brings us to the real problem with these disclaimers:

By overusing them, lawyers may be undermining the effectiveness of disclaimers in protecting the confidential or privileged nature of the information in the email in the (hopefully) rare event that an email is misdirected (or inadvertently produced in discovery).

In Scott v. Beth Israel Medical Center Inc., 847 N.Y.S.2d 436, 444 (2007), the court refused to find that a series of emails were privileged just because they contained a disclaimer that was found in every email sent by the plaintiff. Moreover, by overusing disclaimers and privilege warnings, lawyers are training the world to ignore them — which is precisely what we don’t want people to do.

Want to keep your communications confidential? Encrypt them.

Internet for Lawyers: Books and CLE

Good book. Will have a detailed review later:

Cybersleuth’s Guide to the Internet: Conducting Effective Free Investigative & Legal Research on the Web ( 14th edition Revised 2019) and several other books.

Authors Carol Levitt and Mark Rosch have operated the Internet for Lawyers website since 1999 and offer a variety of CLE programs. Their blog is available.

Presentation Tip 11: The Humor Paradox

One of my professional friends had a major problem: A major cases of humor-impairment. Though bright and articulate he absolutely could not deliver a joke in front of an audience. 

This created a problem for him. He had to teach a class on fraud. I dug up a seventies-era photo of one of the subjects the most famous fraudsters of the 1960s–Texas wheeler-dealer Billie Sol Estes.  My friend accompanied this slide with a mildly sarcastic reference to the subject’s “leisure suit.”  It was a remarkably garish garment, even by the standards of the 70s.  Though this joke wasn’t exactly the peak of wit, my friend never failed to get a laugh using this photo as a prop.  Even better, knowing that his joke was a pretty much a guaranteed winner increased his confidence, making him more effective with the rest of the presentation. 

Why is effective humor a key to successful presentations? We’ll start with a question:

Which of these statements is correct?

  • Presenters should never tell a joke just to be telling a joke.
  • Nearly every presentation can be improved by using humor.

Though these statements may appear inconsistent at first glance, they are both correct. Humor is a great way of connecting with an audience—but it is usually a mistake to include a joke just so you will have a joke.

The difference is critical: If you tell a “joke,” and no one laughs, you look like a dummy, and worse, a dummy who just wasted everyone’s time.  By contrast, if your would-be “humorous” material advances the substantive point you want to make, it doesn’t matter if the joke falls flat.  You haven’t wasted anyone’s time.  You’ve still advanced the ball.

Distinguishing between “canned” humor and “organic” humor is a key to resolving the apparent inconsistency.  Canned humor is something artificial grafted onto your substantive ideas.  Organic humor flows from your substantive ideas and helps advance them.

Of course, getting a laugh is even better, and one of the little-understood truths is that organic humor does not have to be very funny to get a laugh.  Look for chances to introduce humor that naturally arises from your substantive material.  It the humor advances the substantive point you are trying to make, so much the better.

Graphics are an easy way for even the humor-impaired to add humor to a presentation.  Show the audience a picture that relates to your topic.  Sometimes the picture itself will be the “punch line.”  More often, you will deliver the punch line orally.

A beauty of the organic humor approach is that even if no one had laughed, it would not be a problem.  The speaker had not gone “off topic” in a time-wasting unsuccessful attempt to get a laugh.

Want to know more about the use of humor in presentations? “Humor Consultant” Harold Kushner’s book Successful Presentations for Dummies remains the best reference I know on this topic.