Day on Torts has a post on documenting substantive conversations with lawyers. I dissent.

I see these “this will confirm…” faxes and letters all the time, and I have sent them out myself, but I really don’t see the point.

These letters do not have any legal force per se. They are at best “persuasive” if a dispute arises, and the vast majority of judges despise, and stay away from, petty disputes between counsel. In all likelihood, the judge simply will not read your paper trial. I don’t blame them: if they jumped into all the bickering between counsel, they’d have no time to resolve cases on the merits.

I follow two guidelines:

  • First, “Rules are rules.” There’s no need to document someone agreeing to follow the Rules of Civil Procedure. If the other side is giving you something more than you could get under the Rules of Civil Procedure, document it, but otherwise you’ll end up giving the same Rules argument in front of the judge regardless of what your paper trail says.
  • Second, “beware the 30-second explanation.” Unless you’ve got a lot of experience with a particular lawyer, presume that they will misrepresent what happened if they know it will take you more than 30 seconds to explain what they’re misrepresenting. That applies whether you have a paper trail or not. After 30 seconds, the Judge doesn’t care, and will go with what the Rules say. Notice, also, that I said “a particular lawyer,” not “a particular firm” or “a particular type of lawyer.”

If you’re going to get an actual agreement, get an actual agreement, either coming from them or signed by them. The “confirming” letter means nothing; most of the time the “confirming” letters I get complete misrepresent what we discussed, rendering the “documentation” nothing but more bickering.

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