My mentor, the legendary trial lawyer Louis Nizer, was keenly sensitive to the power of language. In the 1970’s, Mr. Nizer constantly inveighed against the names of certain widespread practices in the distribution of motion pictures — “block booking” and “blind bidding” among them — because he believed that the names themselves were sufficiently pejorative to suggest that these methods of doing business, even if legal in certain situations, would automatically be viewed as improper by a judge and/or jury of lay people outside the motion picture industry. Unfortunately, Mr. Nizer did not live long enough to congratulate the wordsmith wizard who figured out that a “Used Car” was really a “Pre-Owned Vehicle.”
The serious point, of course, is that our choice of words matters.
Another of Mr. Nizer’s professional obsessions was his belief that no one – and particularly no lawyer — should ever write anything which he or she would not want read to a jury if it were to be inadvertently disclosed in the course of a lawsuit. He believed — correctly — that we often commit unformed thoughts to writing without realizing that a written document has a weight and lasting significance that words spoken aloud in a particular context may not have. His caution is even more necessary today, in the age of emails, texts and social media. Many people still use these communications devices as a form of talking or thinking aloud without realizing that their comments will, when recorded, acquire a permanence and a gravity out of all proportion to the amount of thought which provoked them.
The former President of Penn State University recently was acquitted on two felony charges in connection with the actions he took (actually, failed to take) in response to the horrible Jerry Sandusky child abuse scandal — but he was found guilty on a single misdemeanor charge of “endangering a minor.” News coverage of his conviction suggested that the evidence of what he knew or didn’t know about Sandusky’s crimes involved a single email in which he mused about potential “fallout” from one or another course of action. Read one way, this email seems to demonstrate the sort of knowledge on which the president’s failure to act points to culpability. Read another way, it is wholly unclear what this president actually knew or whether he simply was musing from on high without sufficient knowledge of what had gone on.
The jury’s own confusion about the ambiguity of the email at issue seems to be indicated by the actual verdict, which may have reflected their belief that the president’s culpable knowledge required to support a felony charge was not proven beyond a reasonable doubt, but also that the jury was sufficiently troubled by the email that it decided the president should not escape criminal liability altogether.
As an executive employment attorney with over three decades of experience in negotiating employment agreements and litigating their enforcement on behalf of both executive and employers, I can attest to the frequency with which these seemingly innocuous word choices and phrasings can cause huge and expensive (and sometimes career-threatening) problems.
College and university presidents and many other chief executives send out hundreds of emails every day. The amount of thought which goes into each one is often no more than the time it takes to type a few lines in the midst of a non-stop agenda of information, governance, scheduling and fundraising. If the Penn State President had taken another minute, and considered the full implication of what he was writing, he might have changed the email to read: “I cannot advise on this matter unless I receive more detailed information. It warrants an investigation and you are authorized to involve the University’s General Counsel for any necessary legal guidance and to revert to me if you require a higher level decision.”
Additionally, if you’re having trouble crafting an appropriate email, it may be a sign that something deeper is wrong.
A C-suite executive in either a commercial or non-profit setting faced with any moral, legal or even strategic problem which cannot fairly and truthfully be set forth in an email which could be read to the jury, should immediately reach out to his or her executive employment attorney for guidance and advice.
