The death of email has been predicted for decades. It has nonetheless survived and endured—for good and for ill—as the dominant medium of formal business communication. Proposals get attached on emails. Key terms get ironed out and approved over email threads. Default and termination notices land in inboxes.
But email is not just a productivity tool. When a dispute arises, it becomes Exhibit A. Jokes, shortcuts, sloppy phrasing and bad tone can all have very real legal effect, swaying both juries and judges.
This post covers the dominant email etiquette mistakes that carry legal consequences and how to avoid them.
1. Unresponsivenes
Why it matters legally:
- Silence ≈ assent. In some contexts, not objecting in writing is enough to indicate agreement. Your real estate agent may email and say, “if there are no objections, I’ll submit the offer.” Not objecting here may function as agreement to the offer being submitted.
- In other contexts, it can be interpreted as neglect. If a building management company receives an email about a leak and doesn’t reply—even if they take remedial action—the non-response can be evidence of neglect.
- Waiver of Rights. Silence can indicate a waiver of rights in some situations. If your neighbor indicates that they will “begin drilling tomorrow” and you don’t reply, you’ve indicated that you don’t object to their drilling. While there is usually a “duty to speak,” silent waiver may be inferred through past practice.
- Course of Performance. In recurring supplier/customer relationships, slow responses can establish a course of performance that weakens your contractual position. If you usually don’t reply when you don’t have an objection, courts will interpret non-reply as your default form of assent.
Business Takeaway:
Reply—even briefly—when rights are at stake. Silence is rarely neutral.
2. Anger and Profanity
Why it matters legally:
- Indications of Intent. Angry emails can be used to show bad faith, hostility, or intent to breach. Depending on the situation, this can give rise to causes of action or affirmative defenses.
- Credibility. Parties who are not likeable are viewed as less credible. If a witness is seen as mean-spirited, vindictive, or impulsive, juries may discount the truth or weight of their testimony, even if subconsciously. This can undermine a party’s case at trial.
- Tort Claims. An angry or profane email can morph a simple dispute into a tort claim (e.g., defamation, harassment, retaliation).
3. Poor punctuation and ambiguous language
Why it matters legally:
- Ambiguous Phrasing. Commas, hedges, and vague phrasing can change meaning dramatically. To save time or avoid the mental trouble of formulating a wordier answer, we often resort to clipped and ambiguous phrases. This can have high downside risk.
- “Looks good” ≠ “Approved.” Phrases like “looks good” and “I like it” seem like contractually-neutral signs of blessing. After all, one is not saying “yes”, “I agree,” or “I approve.” Unfortunately, they still introduce ambiguity if qualifiers aren’t added.
- “Let’s move forward.” The intent here may be to say, “let’s get started on negotiating a formal contract” or “I can accept the price.” The other party may argue that “let’s move forward” means that a contract is formed. Many contracts do not need a formal signature block; email is often enough to create a binding agreement.
- “Okay.” If one replies “okay” to an email, does this mean ‘okay, I have received’ or ‘okay, I agree’? Does one “okay” reply mean the same thing as another?
Offer/acceptance disputes often hinge on a single line buried in a long chain. Email ambiguity creates fertile ground for doctrines like:
- Objective manifestation of intent. Courts ask whether a reasonable person would interpret the communication as a form of agreement. Courts generally favor objective meanings in communications.
- Partial performance. If the email language is unclear, courts will look to how the parties acted on it.
- Promissory estoppel. Did someone make a promise on which another could and did reasonably rely?
Business Takeaway:
Write emails like mini-contracts when stakes are high. While ambiguity can sometimes be your friend, it doesn’t work this way with contracts. If something looks good, indicate what steps are still needed before full approval. Avoid using “okay” as an acknowledgement of receipt. When in doubt, be specific.
4. The CC Problem
Why it matters legally:
- Escalation. Adding superiors unexpectedly can be seen as escalation. If those superiors have sign-off power—and they don’t object—their silence can bind the company.
- Failing to CC. Failing to CC procurement can bind a company unintentionally before undergoing the proper procurement procedure. Failing to CC legal can defeat privilege or prevent privilege from attaching, enabling admission of emails in court.
- Excessive CC-ing. Excess CCs create inconsistent communication and increase discovery volume. It can also weaken confidentiality protections. These errors don’t just cause annoyance—they can materially shift the legal posture of a dispute.
Business Takeaway:
Use CC as a strategy, not a reflex. CC those who need visibility or add value by being cc’ed. Unless decision-makers are actively involved in a discussion thread—and therefore positioned to object—they are best kept off preliminary chains.
5. Forwarding without Context
Why it matters legally:
- Misinterpretation. Forwarding an email without context runs the risk of the recipient misunderstanding its context and acting on it in inappropriate ways.
- Over-disclosure. Sometimes a long email thread contains one or two nuggets of important information. Forwarding an entire email thread can be excessive and reveal more information than necessary.
- “FYI — see below.” When pressed for time, the temptation is toforward emails quickly with minimal commentary. This creates a number of risks. First, there is no indication of the intended use of the forwarded email. Second, there is no indication of the confidentiality or privilege level of the email. Third, there is no summary or commentary on what it means for the recipient.
Business Takeaway:
Always summarize and contextualize emails when forwarding. While AI can help to summarize threads, as the one forwarding, you have a responsibility to provide appropriate context. You should also indicate appropriate next steps and whether confidentiality or privilege applies to the email threads. Never dump full responsibility onto the recipient.
6. Side Conversations
Why it matters legally:
When email threads involve stakeholders from multiple parties—say, a vendor and a buyer—or internal departments—say, legal and procurement—the natural thing is to create separate internal threads. This allows for internal alignment before coming back on the external thread.
This creates obvious risks:
- Discoverability. Just because something isn’t on an email thread doesn’t mean it isn’t discoverable. Courts can compel discovery of side conversations, be they on chats or separate email threads. Slack or WeChat messages can be devastating if they contradict—or appear to contradict—a narrative about external communications.
- Spoliation. Missing or incomplete records create spoliation concerns. Failure to maintain proper records of the full discussions can risk sanctions and adverse inference.
- Improper Channels. Using personal email or other channels may be interpreted as concealment in litigation if the norm is organizational email.
Business Takeaway:
Keep official business on official channels. Avoid using personal communication channels for anything other than coordination.
Conclusions
Email is still the gold standard for formal business communication. It can be sent from anywhere in the world to virtually anyone, has the imprimatur of the sender’s organization, and can easily be archived. If bungled, however, it can create major headaches—not just for the individual emailer—but for the entire organization. Email lasts forever; it is best used carefully.
Used properly—with decorum and precision—email may stay humming for some time to come. Just remember, if it’s not something you’d want read aloud in a deposition, don’t send it.
Disclaimer: This blog is for informational purposes only and does not constitute legal advice. Reading or interacting with this content does not create an attorney–client relationship. You should consult a qualified attorney for advice regarding your specific situation. Mehaffy, PLLC disclaims all liability for actions taken or not taken based on this blog.