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Further explanation about legal risk, productivity and careful review of email

A recent post here pointed out that advice to take five or ten minutes to stress test an important email would necessarily reduce productivity (See my post of Aug. 19, 2009: 5-10 minute rule for email.). A fellow blogger, Mary Abraham, who writes about knowledge management and lawyers on her blog above and beyond km, disagreed with what she took to be my intent: to discourage email review before sending. She focused on the meaning of “productivity” as doing the right things well, not merely doing lots of things.

I do not advocate shooting off emails without thought. I do argue for in-house counsel getting their work done. Practicing law has an irreducible component of risk, if by risk we mean potential for a bad result following an action. Any advice of an attorney, any decision on what and how to draft an agreement, any legal research and conclusion drawn from it, any series of questions to collect the facts, any email message, can be done inexpertly or counseled unwisely – especially in retrospect. Risk lives in the intersection of email and productivity, however you define it

Hence, to caution a lawyer to “watch out,” to “look before you leap and press send,” and to “think how your email jottings could look to a dubious jury,” is to trouble the confident if not hamstring the risk averse.

Since lawyers who serve a company cannot eliminate legal risk taking, every decision must either thoughtfully or unwittingly balance action against repercussion. The crux of my post was that management policies or personal practices that increase consciousness of email risk and its personal toll will slow the wheels of decision-making and throughput.

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