What Business Owners Should Never Put in Writing

For a business owner, a quick email, text message, Slack conversation, or even a casual note can become important evidence in a future lawsuit.

That does not mean you should be afraid to communicate with your employees, business partners, customers, or vendors. Still, it does mean you should understand that written communications can outlive the conversation that created them. If a business dispute eventually reaches litigation, those messages may be reviewed by attorneys, produced in discovery, and presented to a judge or jury.

The safest approach is not to avoid writing. Be deliberate about what you put in writing and how you say it.

Can Emails and Text Messages Be Used in a Business Lawsuit?

Yes, emails, text messages, internal communications, and other electronic records can become evidence in commercial litigation. A message written in frustration may look very different when it is read months or years later, without the context of the original conversation.

For example, a business owner dealing with a difficult partner might send, “Fine. Take whatever you want. I don’t care anymore.” The owner may have meant that sarcastically or simply been venting. But in a shareholder or partnership dispute, the other side could try to characterize that statement as evidence that the owner agreed to something.

The problem is often not that the statement was intended to be legally binding. The problem is that someone else may later argue that it means something it was never intended to mean.

Never Admit Fault or Liability in Writing

One of the most important rules for business owners is to be careful about admitting wrongdoing before you know all the facts. Statements such as:

• “We definitely breached the contract.”
• “This was completely our fault.”
• “I know we owe you the money.”
• “We should have known this would happen.”

can potentially be used against your business.

If there is a legitimate dispute about whether your company breached a contract, failed to make a payment, violated an agreement, or caused damages, it is generally better to address the underlying issue carefully rather than make a premature legal conclusion.

That does not mean you should lie or conceal facts. It means you should avoid making unnecessary admissions when the legal and factual issues have not been evaluated.

Be Careful About What You Say About Employees, Partners, and Customers

Business owners sometimes write things they would never say in a formal document. A frustrated message describing a former employee as “dishonest,” calling a business partner “a fraud,” or accusing a customer of intentionally refusing to pay can create unnecessary problems. Even when you believe your statement is true, putting accusations in writing can create additional legal issues depending on the circumstances.

Before sending a message involving serious allegations, ask yourself a simple question: Would I be comfortable seeing this exact sentence displayed in court? If the answer is no, reconsider how you are communicating.

Do Not Put Informal Agreements Where Formal Contracts Belong

Another common mistake is attempting to handle significant business arrangements through casual emails or text messages. A business owner might write, “Don’t worry about the contract. We’ll work everything out later.” That may seem harmless at the time. Later, however, the parties may have completely different interpretations of what they agreed to.

Important arrangements involving ownership, compensation, business purchases, loans, partnership rights, intellectual property, or other significant obligations should generally be documented through appropriately drafted agreements.

A carefully prepared contract can eliminate ambiguity that a series of informal messages may create.

Avoid Speculating About What Happened

Business owners are often tempted to write explanations before they know exactly what happened. For example, “I’m pretty sure John took the money.” That is very different from documenting a verified fact.

If there is a suspected theft, accounting problem, employee misconduct, or financial irregularity, investigate the situation before making accusations in writing. Your internal communications should distinguish between what you know, what you have evidence of, and what you merely suspect.

What Should a Business Owner Do Before Sending a Sensitive Business Email?

Before sending an emotionally charged or potentially significant message, slow down. Consider whether the communication involves a contract dispute, ownership disagreement, unpaid debt, employee conflict, threatened lawsuit, regulatory issue, or another matter that could reasonably become litigation.

If it does, speaking with a business litigation attorney before sending the message may be worthwhile. A short conversation with counsel can sometimes prevent a much larger problem later.

Your Written Communications Can Become Part of the Case

Business owners do not need to treat every email as though it is a legal filing. That would be impractical. But when a serious dispute develops, assume that important written communications may eventually be reviewed by someone outside your company.

Write facts accurately. Avoid unnecessary accusations. Do not make casual admissions. And when the stakes are significant, get legal advice before putting your position in writing.

At Ayala Law PA, our Miami business litigation attorneys represent business owners and companies in disputes involving contracts, shareholders, partnerships, commercial transactions, and other complex business matters.

If you need legal advice, please don’t hesitate to contact one of our experienced attorneys at 305-570-2208.

You can also contact our team directly at: arianna@ayalalawpa.com               

Schedule a case evaluation online here.

[The opinions in this blog are not intended to be legal advice. You should consult with an attorney about the particulars of your case].