OP-ED: The Importance of a Balanced Approach to Writing
Most non-lawyers are well-steeped in two legal principles: possession is nine-tenths of the law and an agreement that is not reduced to writing never happened. Neither principle is entirely accurate, but each provides helpful guidance to avoiding legal challenges or, if such challenges occur, creating the best environment for resolving those challenges. As to the second trope involving writings, contractors face a critical question: “How much writing is the right amount?” Each day on a project can involve hundreds of modest agreements and judgment calls that cannot each be reduced to writing. The following principles can help you to develop practices that yield the right amount of writing.
Anything you write can be used against you. In litigation, anything a party says or writes can be used in court. Writings can protect against an unscrupulous opponent who might be tempted to manufacture an oral agreement; but writings can also be taken out of context by the same unscrupulous opponent. Therefore, nothing should be reduced to writing without a brief pause to confirm that the writing accurately portrays the circumstances described in the writing.
Too much is a bad thing. Reducing every decision to writing is impractical. The writings cannot be organized to be revisited subsequently. Reducing so many things to writing that nothing can be found in the future renders all writings useless: why write something down if that writing is not preserved anyways? Moreover, circumstances can frequently change. Florid writings are susceptible to being taken out of context.
Not enough is also bad. A partial writing can be worse than too much writing. Imagine, for example, a summary of a negotiation that does not include the final agreement. Such a summary can be taken out of context and treated as a summary of the final agreement and not the negotiation summary that it is. The summary is thus dangerously partial if it does not clearly state that it is part of a tentative—not final—agreement. It is also dangerously partial if it does not clearly state that it is a summary of some but not all terms of an agreement.
Feelings are fleeting. Try not to reduce feelings to writing. Third parties, such as juries or judges, do not always share the righteous indignation that a person feels in the moment. On the flip side, happiness about perceived quality can give way to dismay if the initial perception of quality proves to be inaccurate.
Guesses are dangerous. Like feelings, guesses are dangerous. People have difficulty recording all of the data upon which they base a guess. Numerous psychological studies establish that humans render guesses based on misperception or shaky reasoning.
Too much and too little writing is dangerous. Guesses and feelings should not be permanently memorialized. But there are also some principles that can guide what should be reduced to writing.
Facts are your friends. A summary of factual events can help to reduce repetition of factual investigation. Also, people often have plastic memories that tend to morph consistently with perceived self-interest. A cold summary of facts can provide a persuasive record of what, objectively, did happen.
Consistency is the key. A party that writes the same information down routinely finds it easy to continue to write down the same information. The recording of that same information also creates the impression that the written information is important (so it should be important). Finally, once developed, habits can be easy to maintain.
Confirmation is king. Writings are most persuasive when they have been shared with an opposing party. In a litigation setting, writing carries particular punch when a party can ask its opponent: “If you disagree with the writing now, why didn’t you object the first time you received it?” That question is even harder for the opponent to avoid if the opponent in fact confirmed the writing.
Confirmation is also helpful at avoiding conflict and litigation. A misunderstanding can be averted early if a writing highlights a misunderstanding when there is still an opportunity to resolve it. Although this article focuses more on how writings can provide an advantage in litigation, it also illustrates how writings, if shared, can avert disputes.
In sum, writings should be factual, consistent and confirmed to be helpful. Writings that are incomplete, indirect, or steeped in temporary feelings can be misrepresented and lead to further disputes.
Column first appeared in the Daily Journal of Commerce on March 23, 2016.