A couple of decades ago, long before we had a “Do Not Call” registry, AT&T based an ad campaign on the public’s dislike of telemarketers. In a representative TV commercial, an outraged customer looked into the camera and complained that someone from a rival phone company had called and asked him to “switch from AT&T.” This blasphemous request, we were told, was accompanied by a promise of better payment terms. Aware that such a promise could only be a lie, the customer boasted that he had foiled the scam by asking the caller to “put it in writing” – a step that the villain proved unwilling to take. The commercial, though grating and unintentionally funny, did speak to a larger truth: one can avoid a lot of headaches by putting things in writing.
Perhaps it’s my legal training and uptight nature, but it actually amazes me how many small business owners fail to document crucial decisions, communications, and agreements. As admirable as handshake deals might sound in principle, reliance on an oral “understanding” or promise – without even an informal exchange of confirming e-mails – can be dangerous. One type of danger, of course, is reflected by the “AT&T” scenario: a dishonest party might purposely avoid “putting it in writing” because he hopes to change his story later. Another risk, though, is that two parties who are acting in good faith simply misunderstand one another or have differing memories as to what was stated at a particular time. Putting pen to paper (or fingers to keyboard) at the time of the transaction or discussion can help reveal and resolve possible misunderstandings before they turn into disputes. Similarly, a writing can serve as a peacekeeping frame of reference in the future – when the passage of time will have clouded the parties’ memories.
It is likewise advisable to use written correspondence and / or other types of documentation during the course of a business or employment relationship. In addition to providing the parties with clarity and hopefully preventing misunderstandings, skillfully prepared writings can be used to “win” a conflict. Let’s say for instance, that a customer has falsely accused your business of consumer fraud. Would you feel comfortable going to court and simply hoping that the judge or jury believes your oral version of the “he said, she said” narrative over the customer’s? Or would you prefer to present an e-mail trail that clearly demonstrates that you provided her with clear and accurate information before she committed to purchasing from you? There’s an obvious answer to this hypothetical, yet entrepreneurs often leave themselves in the former situation. (As an aside, if another party writes you a letter or e-mail falsely accusing you of wrongdoing, it’s usually best to send a response denying the allegation. If the matter goes to court, your failure to respond might be considered an “implied admission” as to its truth.)
There are, however, some caveats. First, different situations might call for different tactics, and I’m not purporting to give you a magic formula for success or to provide you with legal advice. Second, be aware that you probably do not want to use a “documenting” e-mail to tell the other person that he’s a no-good #%@#$#. As viscerally satisfying as that might feel in a particular circumstance, the correspondence could reflect poorly upon you if and when a judge or juror sees it – and you must have that “third person” in mind when you do your writing. Finally, the same “garbage in, garbage out” rule that applies to computing also applies to documenting. Just as intelligent documentation can be helpful, misinformed documentation can be useless or even counterproductive. Before creating a “permanent” record of the truth as you see it, you must be sure that you know what you’re talking about and what you’re trying to achieve. If in doubt, contact a professional.