According to John Harr’s book A Civil Action, which was made into a 1998 film of the same name starring John Travolta; any litigation is a war. In case you are not familiar with it, Sun Tzu’s The Art of War is a treatise written about Chinese military practice in the sixth century. It is a classic, enduring text about how to conduct battle and be victorious in war. I picked up a copy as an articling student; I still think we lawyers can learn from ancient rules of war not just in our substantive and procedural legal dealings but also in our business and practice management. Even something as seemingly mundane as e-mail etiquette can be informed usefully by this ancient strategic advice.

In legal theory, there is an important distinction to be drawn between concept and conception. A “concept” is a timeless notion, like justice, for example. It is a general idea. Different legal theorists will have their own specific ideas or “conceptions” of justice. These conceptions are specific to the time and place of the theorists’ writing. Working from the supposition that the rules of war iterated by Tzu in ancient Asia contain concepts that apply generally, the following is an application of his rules for winning in battle to the use of e-mail by lawyers.

“If you know both yourself and your enemy, you can win a hundred battles without a single loss.”

Lawyers need to know and control what e-mails are being sent from their offices. It is useful for firms to create a written policy that outlines do’s and don’ts concerning e-mail use. All employees should be given a copy of this policy and briefed on it. Employees must be instructed in the importance of e-mail etiquette. There is e-mail management software and there are e-mail response tools that can help monitor e-mail use in a workplace.

Lawyers should take care to be aware of to whom they are sending e-mails and consider the recipient in crafting each message. Spam should be avoided. E-mail messages should be individually addressed. Questions asked in e-mails should be answered directly and further questions should be anticipated. It is not enough to simply use software that allows for “form” letters to have individualized salutations. Contents of messages should be personalized. If clients are less technologically savvy, it will often be useful to provide hard copies of anything sent in an e-mail by letter mail to follow. Clients should be asked at the retainer stage what sorts of communications work for them.

“One hundred victories in one hundred battles is not the most skillful. Seizing the enemy without fighting is the most skillful.”

It will sometimes be useful to avoid sending e-mails at all. If your firm receives certain questions regularly (such as about directions to your office or your areas of practice), it is probably a good idea to use templates for frequent responses. These can be saved as texts and cut and pasted into your message texts when needed. A word document or pre-formatted e-mails can be useful tools for doing so. An informative and user-friendly website (containing directions, for example) can be a means to avoid these common, simple questions altogether. Clients can simply be directed to the appropriate URL.

“He will win who knows when to fight and when not to fight.”

Strategic use of e-mail can be as much about what you don’t do as it is about what you actually do. In order to convey stress on matters in e-mails, use tools like capital letters and message subjects like “urgent” sparingly if at all. Don’t use emoticons or abbreviations (for example, LOL or WTF should be confined to adolescents’ text messages). Re-read e-mails before you send them. Don’t forward chain letters (especially as, in addition to being generally annoying drivel, they can be virus hoaxes). Don’t reply to spam. Don’t overuse the “reply all” function. Don’t send attachments unless it is necessary to do so. If you can reasonably put the message in the text of an e-mail, do so. Do not request delivery and reading receipts. These are invasive and annoying.
Brevity, in e-mail as in all writing, is the soul of wit. Do not make an e-mail longer than it has to be. Reading electronic material is more difficult to do than reading printed communications. A long e-mail can be difficult to read. The more you write, the less likely it is that readers will appreciate the pith of what you are saying.

“Do not repeat the tactics which have gained you one victory, but let your methods be regulated by the infinite variety of circumstances”

E-mail is a unique medium. Practice management strategies lawyers employ for other communications such as phonecalls and letter mail should be appropriately modified to reflect the singular properties of electronic communications. Clients send e-mails specifically because they are seeking a rapid, written response they can read at their convenience. E-mail should be replied to swiftly, certainly within 24 hours and preferably on the same working day. If the e-mail received merits a detailed response, send a quick note acknowledging receipt of the e-mail and indicate a timeframe for a follow-up message dealing with the matter in appropriate detail.

”The consummate leader cultivates the moral law, and strictly adheres to method and discipline; thus it is in his power to control success.”

Above all, professionalism and ethics must be maintained in e-mail communications. Obviously, do not send or forward e-mails containing defamatory, racist, sexist, obscene or offensive contents. Add disclaimers to your e-mails to protect yourself from potential liability and/or disciplinary action resulting from inadvertent disclosures of information. Write in full sentences and format your writing appropriately. Remember, e-mail is written communication and should be authored with as much seriousness and attention as is paid to the writing of a letter.

Rebecca Jaremko Bromwich practises civil litigation in Ottawa. She has taught youth criminal justice at the University of Western Ontario, as well as classes on women's issues at the University of Cincinnati. She is  pursuing her LL.D. at the University of Ottawa.