THE PITFALLS OF OVER-DOCUMENTING: WHEN NOT TO PUT IT IN WRITING By Frank Rolfe

It’s a standard piece of advice from lawyers: “Make sure you have it in writing.” Indeed, for many agreements to be legally binding—particularly those involving real estate, large sums of money, or contracts extending beyond six months—a written record is essential. Writing things down can help avoid misunderstandings by clearly defining terms and conditions.

However, there’s another piece of wisdom that often comes into play: “If only my opponent had put that in writing.” When disagreements or legal battles ensue, any written evidence can become a powerful tool against the writer. In our digital age, where communication via text, email, and social platforms is ubiquitous, we're often too quick to type out thoughts we’d be better off keeping to ourselves.

The Dangers of Casual Written Communications

In the heat of a moment, it’s easy to send off a message that seems harmless or humorous. Yet, many have learned the hard way that a casual email or text can end up as Exhibit A in a legal dispute. Whether it’s a careless joke or a thoughtless remark, written words can sometimes be taken out of context or reveal intentions that were never meant to be public.

Legal professionals know to hunt for such slips in communications, particularly when a lawsuit arises. Something as innocuous as a joke can be twisted into evidence of discrimination or malintent. For example, a remark about a coworker’s appearance or a flippant comment about company practices can turn into key evidence in cases ranging from workplace discrimination to corporate fraud.

When to Avoid Writing It Down

While the digital world encourages quick and easy communication, it’s crucial to pause and consider the potential longevity and visibility of our written words. Here are a few scenarios when picking up the phone might be wiser:

• Sensitive topics: If the subject matter is delicate or could be misconstrued, verbal communication can prevent misunderstandings that written texts might provoke.
• Emotional content: In moments of frustration or anger, spoken conversations can allow for tone and context that texts or emails lack.
• Complex issues: Some discussions are too nuanced for written communication, where the lack of verbal cues can lead to confusion.

Best Practices for Written Communications

To avoid potential pitfalls, here are some tips for managing written communications:

• Think before you type: Consider how your message might be interpreted by someone outside the immediate context. Could it be seen as offensive or incriminating?
• Keep it professional: Always write as if your message could be read in a more formal setting, such as a courtroom.
• Secure sensitive information: Be cautious about sharing confidential or sensitive information in digital formats that could be easily forwarded or hacked.

In conclusion, while documenting agreements and decisions is often necessary and useful, it’s equally important to recognize when not to put things in writing. In our digital age, a momentary lapse in judgment can lead to long-term repercussions. So, next time you’re about to send off a quick message, take a moment to reflect on the implications and potential for it being misinterpreted. When in doubt, ask an attorney. And also, when in doubt, don’t send it.

By Frank Rolfe

Frank Rolfe has been an active self-storage investor for around two decades, with self-storage units in many states throughout the U.S. His nuts and bolts knowledge of what makes for a successful self-storage facility has led to a three-decade career without a single failed property.