Part 2 of our video series on construction litigation best practices
In Part 2 of our “Building the Case” series, Brett Burney sits down with construction industry expert Jerry Crawford to discuss why email policies matter, what mistakes to avoid, and how seemingly informal messages can become critical evidence in litigation.
The Email Problem in Construction
After 44 years in the construction industry and over a decade combing through thousands of emails in litigation matters, Jerry Crawford has seen it all: the good, the bad, and the career-ending.
“It’s pretty amazing sometimes what people will say in an email or type in an email message,” notes Brett, eLaw Evangelist at Nextpoint. “Sometimes things they would never say in a telephone conversation or in a face-to-face conversation, but they put it in an email message and it never goes away.”
This creates unique challenges in construction litigation, where long-term projects involve rotating teams, multiple stakeholders, and thousands of email exchanges that can span years. One poorly worded message, one emotionally charged response, or one misunderstood abbreviation can become the pivotal evidence that makes or breaks a case. Understanding construction litigation best practices around email management is essential for protecting your projects and your organization.
Why Every Construction Company Needs an Email Policy
According to Jerry, Principal Director at KGC Consulting, there’s a significant gap in the industry: “Most organizations and companies don’t have a robust email policy. Some have no policy at all.”
This absence creates problems on multiple levels. When litigation arises, attorneys and ediscovery professionals need to know where to collect emails, how long they’ve been retained, and whether preservation protocols are in place. A formal email policy is one of the most fundamental construction litigation best practices that companies often overlook. Without a formal policy, companies are flying blind.
What Should Be in Your Email Policy?
A well-crafted email policy should address several key areas:
Structure and Organization
- Formalized guidelines to maintain uniformity across teams and external stakeholders
- Standardized auto signatures and font standards for professionalism
- Spelling and auto-correct features enabled
- Important keywords and coded numbering systems in subject lines
- Clear definitions for high-importance tags (what warrants that red exclamation mark?)
Project Management
- Dedicated project folders with substructure folders for critical items like budgets, schedules, and non-conforming reports
- Consolidated email folders for projects with rotating teams
- One subject per email — avoiding commingling multiple issues
“This is one of the biggest things we see in litigation challenges… the commingling of multiple issues and multiple subjects on 10, 15, sometimes 20 page string emails where the subject has no bearing in the body of what’s being discussed in the content of the email.” — Jerry Crawford
Communication Standards
- Guidelines for CC’ing high-level executives (only urgent or critical matters)
- When to use “privileged and confidential” designations
- Clarity on expected response times
- Bullet points for action items rather than long paragraphs
- Spelling out abbreviations on first use (especially important when working with multiple stakeholders)
Technical and Security Considerations
- Out-of-office reply expectations
- Block-out periods for response times (weekends, holidays, after-hours)
- Cybersecurity policies
- Email preservation protocols with designated responsibility for compliance
Jerry emphasizes that having the policy isn’t enough: “You have to attach someone to make sure it’s being followed.”
Email Content: What to Do and What to Avoid
Beyond policy, the content of construction emails requires careful consideration. Here are Jerry’s key recommendations:
Best Practices
Use Email to Confirm Conversations: Jerry recommends using email to conclude discussions after phone calls or Teams meetings, creating a written record of what was agreed upon
Strip Down Forwarded Emails: When forwarding messages, remove sensitive information and reduce the thread to its essentials — three or four strings at most so recipients can follow the conversation.
Spell Out Abbreviations: Engineers love acronyms, but rotating teams and diverse stakeholders may not understand them. Always spell out abbreviations on first use.
Organize Proactively: Set up project-specific folders, especially when litigation is anticipated. This streamlines collection and review later.
Critical Mistakes to Avoid
The Thumbs Up Problem: A simple emoji can be interpreted as agreeing to something when you only meant to acknowledge receipt, especially problematic when money is involved.
Reply All Overload: Don’t copy everyone unless necessary. Too often people are included “just for the sake of, well, I told you, right?” but with no expectation of action.
ALL CAPS = CONFRONTATION: Never use bold or capital text to make a point. It appears confrontational and can escalate tensions.
Personal Matters on Company Email: Private discussions have no place on organizational email systems. Many cases have pivoted on inappropriate personal comments about someone’s personality or performance.
The First Strike: Never start a sensitive email without discussing it first. “A lot of relationships sour over getting off on the wrong foot on the first bad email,” Jerry notes. Make a phone call first, then follow up in writing.
“Never respond to provocative emails when emotionally charged. I think we’ve all heard that. It’s better to respond: ‘Not sure I concur. Let me respond more formally when I have time.’ There’s a better way to leave it. You will think differently two or three days later.” — Jerry Crawford
Emotional Responses: Sleep on it. Take an hour. Do anything except immediately reply when you’re upset. As Brett jokes, emotional email exchanges provide “job security for folks in the discovery industry,” but they can be devastating for your case.
Commitments You Can’t Control: Never use language that commits you to something outside your control or authority.
Practical Steps You Can Take Today
Based on Jerry’s decades of experience and Nextpoint’s work in construction litigation, here are actionable steps you can implement immediately:
- Audit Your Email Policy: Do you have one? Is it comprehensive? Is anyone responsible for ensuring compliance?
- Train Your Teams: Make sure everyone understands email best practices, especially around emotional responses, sensitive discussions, and the difference between acknowledgement and agreement.
- Set Up Project Folders: Organize emails proactively, with dedicated folders for budgets, schedules, NCRs, and other critical documentation.
- Establish Response Protocols: Define what requires immediate response, what can wait, and when to escalate to phone calls or in-person meetings.
- Create a Preservation Protocol: Know your obligations, know your systems
- Think Before You Type: If you wouldn’t say it in a formal meeting or wouldn’t want it read aloud in court, don’t put it in an email.
The Bottom Line
Email in construction is documentation, evidence, and potentially binding agreements. The stakes are too high to treat it casually.
As Jerry’s experience demonstrates, the difference between good and bad email practices can determine the outcome of litigation involving millions of dollars and years of work. Implementing construction litigation best practices around email management, from policy development to daily discipline, is essential risk management that every construction company should prioritize.
The next time you’re about to hit send on an email about a construction project, ask yourself: Would I be comfortable with this being read aloud in court? If the answer is no, take a breath, pick up the phone, and have that conversation first. Then document it professionally in writing.
Your future self, and your legal team, will thank you.
Watch the full discussion between Brett and Jerry below:
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