In this chapter from our Transaction Management eBook, Ed Boal, Director & Head of Legal Operations at Stephenson Law, reflects on the use of email to communicate between parties and asks whether lawyers will ever really adopt other means of communication.
A key question that clients often ask corporate lawyers is the likelihood of completing a transaction by a specific date.
The response will usually be along the lines of, “Well, bigger deals have been done in much shorter time”, followed by a series of caveats such as the transaction proceeding in line with agreed terms, negotiations not becoming unnecessarily protracted and the ‘other side’ being cooperative and responsive (the alignment of the planets with the moon and stars also playing a part).
What difference, then, can the way parties communicate with each other make? Would switching away from emails shave minutes/hours/days off a transaction timetable?
Lawyers love email
It is fair to say that as a profession, the legal industry is somewhat wedded to email. Email is, more or less, secure. Email allows lawyers to ‘finesse’ their messages by adopting a tone of voice redolent of a bygone era where missives were exchanged by snail mail and client expectations regarding responses were set accordingly. From a regulatory and risk management perspective, emails can be filed and audited. Many billable hours are locked up in the reading and writing of emails. It could even be argued that emails – reading them, writing them, even using them as a means of prioritising workload – are an essential feature of legal practice.
Where email falls short
Emails are not encrypted from end-to-end (receiving an email requiring you to log into a website to read an email representing an irritating trade-off between efficiency and security).
Those finessed messages are not as concise as they perhaps could be. The asynchronous nature of email inevitably introduces a level of ‘transactional friction’. And it can be incredibly difficult to track threads of issues and versions of documents across multiple emails all with the same subject line (Re: Re: Re: Re:...)
Will lawyers make the move?
Clients have for some time been dropping (unsubtle) hints that they would like lawyers to let go of emails; gradually shifting conversations over to Slack, Teams, WhatsApp and other chat-based apps. And why exchange tracked versions of documents by email when comments can be made and changes suggested in real-time using Office 365 and GSuite? The pandemic has undoubtedly accelerated the shift towards these other, more collaborative, more instantaneous methods of communication. Indeed a 2021 ‘tech-readiness survey’ conducted by Obelisk Support of more than 2,000 legal professionals, predominantly based in the UK, suggests an increasing move towards the use of other text-based communication tools.
So, will we see emails falling out of favour with the dealmakers? Will there be a ‘killer app’ for transaction management that removes the need for emails altogether?
At least in the foreseeable future, the answer to both questions is: probably not.
In the context of corporate transactions, emails provide an important vehicle for parties to set out their considered positions on complex issues in a manner that may seem absurd to share with other parties in the context of an informal ‘conversation’. Sometimes email is the right tool for the job. Yet, there are significant gains to be made for all parties by relegating the use of email as the primary communications tool in favour of messaging apps and document collaboration and negotiation platforms, of which a new and exciting crop is beginning to emerge.
Ultimately, however, the displacement of email by other communications tools represents a huge culture shift, not just in the context of corporate transactions, but legal practice generally. It will likely take another generation of lawyers (and their clients) before the use of email finds its place in the annals of history alongside telex, fax and even BBM(!)
This is a chapter from our eBook Transaction Management: Is technology taking over the deal? You can read more insights from legal industry voices on the role technology is playing in the transaction management lifecycle in the book. Download the eBook today.
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