A word of warning about the risks associated with texting and emailing for litigation

You will probably have observed that the world is changing in many ways. People now text message or email each other rather than communicate by the spoken word and there are several risks associated with this from a legal perspective.

Firstly, a text or email leaves a permanent imprint which can be very useful in litigation. We recently saw an affidavit which comprised many pages of emails and texts and left no doubt as to the history of the matter and what each side in the matter thought of the other. In days gone by it would have been one person’s recollection of a conversation judged against another.

Just as the ink and quill have become items of the past, it is possible that the pen may become an item of the past. Our successors may look at a pen with amazement in years to come.

Several Government departments are now discontinuing the use of facsimile machines. It is no longer possible to send a facsimile transmission to the Department of Land and Property Information.

The prediction that no one would need to type one day was wrong as we may need to type more than have the ability to speak. It is becoming very difficult to operate in business without having sophisticated computers and computer skills.

The risk with emails and texts is that they create a permanent record of the communication, room for colloquialism, ambiguity and misinterpretation.

We ask that our clients be very careful with texts and emails. Someone who will remain nameless once said that they ‘[W]rite the best emails after a liquid lunch, but never send them until the next day!’


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