Eartha Jean Johnson, shown at the Women’s Business Enterprise Alliance Expo in late May promoting her business, Legal Watch, has built a career on helping companies avoid trouble with emails and other communications.
When Eartha Jean Johnson was growing up in Nebraska, she hoped to follow in the footsteps of famous TV lawyer Perry Mason.
Her first big job as a lawyer turned out to be far less glamorous. She sorted through documents in a warehouse for a big energy company in Houston.
But she made a remarkable discovery while hunting for documents to prove the company’s side of the story in legal disputes. It was a discovery that would later launch her into a new career.
Inflammatory comments from employees in documents were helping torpedo the company’s cases, she said. And she saw comments that could easily be taken out of context if presented to a jury.
“I started seeing the amount of money for one bad document,” Johnson said, recalling the settlements after stumbling on comments such as: “It was an accident waiting to happen,” “We didn’t follow our own procedures” or “We violated the law.”
Anyone, from a rank-and-file employee to a top executive, may dash off an email, send a text message or write a memo, in the regular course of their jobs that could come back to haunt them. Johnson calls that “self-inflicted liability.”
“It happens all the time,” said Mark Oberti, an employment lawyer with Oberti Sullivan. And it’s not just employment cases, he said, recalling an email in a pipeline dispute that became the “real game changer” after an employees of a pipeline construction company wrote a note to his boss recounting a conversation with a client.
The meaning was clear
The email -a half-page of punctuation marks that represent the universal language of cursing – was presented as evidence showing the company had made it clear it was not willing to pay more in cost overruns. Like emails sometimes do, it became a focal point for the case that ended up settling confidentially, Oberti said.
Johnson, who eventually left her corporate job to stay home with her three children, began doing training programs for Shell Oil Co. and others. In 1997, she started Legal Watch in Houston.
Then in 2002, Shell hired her to train almost 3,000 executives on how to reduce risk associated with employees’ actions and communications, with an emphasis on email.
She also offers other training, including on the Foreign Corrupt Practices Act and sexual harassment. Her company has five employees and seven contractors.
In her training programs, Johnson coaches clients to avoid blanket statements of liability, keep personal opinions out of company documents and focus on the positive. And to resist the urge to point out in writing every way in which projects can go wrong.
“Some people like to impress you with their knowledge,” she said, noting that the litanies of worries can lead to litigation problems.
‘Not in compliance’
One of the most common legal challenges she faces is managers writing in emails describing a problem that could get them in trouble with regulators and using the phrase, “We’re not in compliance.”
Part of the problem companies face is confusion over what is considered privileged communication, said Mike Muskat, an employment lawyer who represents management clients with Muskat, Martinez & Mahony.
Some managers mistakenly believe if a report goes to executives at a company it will remain confidential, he said. Another common misconception is the assumption that copying a company lawyer on documents automatically shields the information because of attorney/client privilege. It doesn’t, he said.
But the question of privilege comes up frequently when companies do routine internal investigations after accidents, he said. The “root cause report” is often sent to the company lawyer as part of the distribution list with the expectation it will remain confidential.
In their comfort zones
Putting an end to errant comments can be difficult.
People are so used to writing emails, sending texts and using other forms of quick electronic communications that they often don’t stop to consider the consequences, said Oberti, who added that he reminds his clients to be careful in a seminar he presents on the 10 most common employer mistakes.
It’s almost like a stream of consciousness, especially when employees are in their comfort zone as they send messages back and forth to their managers, he said.
“They assume they’re in a cocoon of privacy,” he said. “People’s guard is way down.”
Sometimes the solution is putting a more positive spin on a situation.
Johnson recalled when one of her clients was sued after a truck driver encountered 11 steers and one pregnant cow on a rural road. Instead of focusing on how the driver hit one of the animals, the employee should have explained how he used his deft defensive driving skills he learned on the job to avoid hitting 11 out of the 12 animals, she said.
“Don’t focus on the negative,” she said. “Instead, focus on what you did right.”