February 4, 2016
To Text or not to text: that is the question.
Before founding Executive Legal Professionals, PLLC (ExecutiveLP™), I spent a short time in general practice, where I learned something about the legal system and text messages: Judges hate text messages. Judges hate text messages, because text messages are difficult to authenticate and are nearly always very, very unclearly written. Not only is the substance of a text message exchange often difficult to extract, but even understanding who the parties are can be surprisingly difficult. Text messages, while permissible, are incredibly bad evidence.
Trying to introduce text messages as evidence can anger a judge, and thereby harm your case. So, there are good reasons to avoid using text messages to discuss anything which could be a factor in potential litigation. The general rule of thumb I recommend is this: If you can imagine yourself wanting to introduce a text message exchange as evidence in litigation, do not text; instead, use e-mail! You probably have an e-mail app on your phone. Just switch from iMessage (or whatever app you use for sending and receiving SMS messages) to your e-mail app of choice.
The Hierarchy of Communication
There is a hierarchy to modern business communication, and it goes like this (in order of preference): e-mail, phone calls, and in-person meetings.
Notice that text messages do not even appear in this list. Text messages are disruptive. Text messages are terrible evidence. So, text messages should only be used for the most casual exchanges.
In The 4-Hour Workweek, American author, entrepreneur, angel investor, and public speaker Tim Ferriss suggests the following approach when it comes to business communication:
Decide that, given the non-urgent nature of most issues, you will steer people toward the following means of communication, in order of preference: e-mail, phone, and in-person meetings. If someone proposes a meeting, request an e-mail instead and then use the phone as your fallback offer if need be. Cite other immediately pending work tasks as the reason.1
If you get a text message from someone, however, you may feel the urge to respond in kind. You may even feel it’s rude to ignore a text message. I recommend sending yourself a standard text message you can use to copy and paste into a response. Then, use this copied and pasted message to respond to business-related text messages that are not appropriate for that medium of communication. Here’s a sample you can use:
I received your message. I’m happy to discuss this with you via e-mail. To which e-mail address would you like me to send reply? Thank you.
Then, do not allow yourself to be drawn into further exchanges over text message. Simply copy and paste that reply once, and then stop responding. The following are 7 times when you should redirect a conversation to e-mail, and avoid texting.
A Lawyer’s 7 Laws of Texting in Business
- Billing or Bill-related issues, questions, or problems. If you have received an invoice or bill, and you have a question about it or would like to dispute a charge, do not send a text message to the person who sent you the invoice or bill. You should e-mail them, instead.
- Scheduling a Meeting. While it might be okay to change a scheduled meeting via text message (though I think doing so makes one seem flaky and unreliable unless they’re making the change due to a bonafide emergency), one should never initially schedule a meeting using text messages. Use e-mail, and, if possible, use a tool which will allow the other party to automagically add the meeting to their iCal, Google Calendar, Outlook calendar, etc.
- When what you need to say cannot be limited to 140 to 160 characters. I have had clients send me text messages as long as 2,348 characters. That’s the equivalent of 17 tweets on Twitter. The maximum character count for an SMS message is 160 characters. If you need to send a longer message, use e-mail.
- When you need to fire someone — an employee or a client. Actually, anytime you’re delivering bad news. Sometimes, you just have to fire a client. You should never do it over e-mail, though. (See also: How to Fire a Client in 6 Easy Steps and Which Clients Should You Fire?) Same goes for employees. If someone is losing their job, they deserve to, at least, get an e-mail. Plus, you’ll want to be able to add the e-mail to their personnel file; that’s tough to do with a text message.
- Sending an apology. Really? You can’t be bothered to call the person, meet them for five minutes, send flowers or tickets to a game or show, or even send an email–maybe a cute little e-card–to say, “I screwed up. I’m sorry.” If you’re apologizing via text message, how sorry could you really be? Text message apologies reek of insincerity.
- Delivering really great news. So-and-so just had a baby, got promoted, got a new job, discovered the New World, walked on the moon, or invented penicillin. You found out by text message, along with other great messages such as “Do U still want to see Kung Fu Panda 3 2nite? It’s gonna be gr8!”
- Changing contract terms. Okay, seriously? You want to change that little clause on page 8, paragraph 3, section 2(c) and you can’t send an email? Send an email. A request to change a written agreement should always be made in writing. I don’t think text messages technically count as “writing.” They’re more like some kind of magic text-based pseudo-telepathy in which the laws of nature, physics, and grammar do not apply. Texting is a weird medium in which even the most egregious word crimes are not only overlooked, but expected.
- Sending questionable content (including gossip, pictures, etc.) to colleagues, employees, clients, etc. Why anyone would do this is beyond me. A person close to me, who will remain nameless, once received a text message from her boss which included what appeared to be a picture of a butt crack. It turned out to be a picture of his arm at the elbow joint. He thought it was hilarious. She didn’t. It wasn’t appropriate. Also, don’t text messages to your co-workers like, “You’ll never believe what the dumbass in sales just did! WATCH THIS VIDEO…” Not cool. Ever heard the words “hostile work environment”? Soon, you might.
Haste Makes Waste
In today’s fast-paced business world, we tend to believe that speed of communication is an improvement to communication. What we should understand is that improved capacity does not necessarily mean improved quality. It might be better to send a quick, short message; but it might not! Sometimes, we need to pause and consider what we’re saying and how we’re saying it. Sometimes, formality adds gravitas and propriety to our message.
Our communication, in business, should always be context-appropriate, safe for work, and delivered in the most effective, efficient way possible. Failing to communicate well can lead to business disruption. Maybe someone thinks you’re too immature, so you don’t get that promotion–or you get fired. Maybe you cause a lawsuit with your inappropriate picture, video, or text messages. Maybe someone second-guesses whether you’re really the caliber of businessperson you first appeared to be, because you suggested changing an important contract via text message, revealing your lack of sophistication. Maybe you lost your case, because you pissed-off the judge by introducing 17 pages of printed-out text messages, and he started looking for a reason to find against you.
Often, the old maxim proves true: haste makes waste. Running 5 minutes late to a meeting? Send a text message. It’s courteous. That’s what text messages are for. Want someone to be excited about your upcoming meeting? Send a teaser text: “Got some really great news on your account. See you at 3:00!” There are times when texting is appropriate, but using text messages inappropriately is unprofessional and potentially dangerous. Text carefully.
- Ferriss, T. (2009). The 4-Hour Workweek. New York: Crown.
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