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Picture this: you get on a roller coaster ride. They strap you in. The ride starts. Mid-ride, a sharp knife comes out and cuts your nose off. At the end of the ride, as you're returning, still strapped in and bleeding, there's a clear disclaimer warning you that riding the ride means you assume the liability of having your nose chopped off.
Now ask yourself where your email disclaimer is located? It seems that most attorneys and firms have resolved to append a lengthy, sometimes emphatic, legal disclaimer at the end of every email. And while the disclaimer, regardless of what it states, may be of limited (or no) benefit, the logic of a disclaimer as a footnote simply fails. But if you have an email disclaimer, here are some tips:
Move It On Up
If you're going to use a disclaimer at all, move it on up to the very top of your email. What good does it do at the bottom? If your email goes to the wrong person, in order to even see a disclaimer below your signature block, the recipient would have to scroll through (or read) the rest of the email. This logic was well known a decade ago, so why are you still disclaiming at the end?
Make It Readable
Don't use all capital letters or all italics or all bold. It's tiring on the eyes, and it means people will be able to skip over or ignore the entire disclaimer more easily. You can highlight words or phrases like "disclaimer," "confidential," "not the intended recipient," and "permanently delete and notify sender." Make sure instructions are clear and easy to follow.
Keep It Simple, or Don't Bother
Your disclaimer shouldn't contain long sentences, and shouldn't have very many sentences either. And emails that don't require a disclaimer shouldn't have one.
For example, do you really need a disclaimer warning about attorney client privilege when you send a courtesy copy or proposed order to your judge via email? How about when you forward a silly cat video to a colleague?
Different Disclaimers Save Mistakes
If you have different disclaimers that get used depending on who the email's intended recipient is (i.e. opposing counsel, your co-counsel, your client, your mother), you create a redundancy that helps you avoid sending an email to an unintended party. That's because when you begin each email, after you type in the recipient's name, you'll need to select the appropriate disclaimer to add manually (which only takes a few seconds), but in the process you'll be reviewing the intended recipient's name to make sure it matches the appropriate disclaimer.
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