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Document those oral conversations!

Imagine that “Alice,” a lawyer, has a phone conversation with “Bob.” During the conversation, Bob says something that’s important to a matter that Alice is handling for a client. It’d be wise for Alice to document the conversation promptly — for example, with a confirming email or letter to Bob (for which Alice would want to be able to prove that Bob actually received it), or at the very least, with a memo to file written promptly after the conversation.

Why would Alice want to do this? Because someday in court, she and Bob might get into a “he said / she said” swearing match about what exactly was said during the phone conversation. If Alice can’t produce contemporaneous written documentation of the conversation, the judge might find her version less credible than Bob’s version.

Something much like that happened in Bell v. Safeco Ins. Co. of Illinois, No. HHDCV126028741S (Conn. Super. Oct. 7, 2014). There, an attorney testified that two insurance adjusters had told her orally that the limitation period for making an underinsured-motorist claim was longer than it actually was under the insurance policy terms. The two adjusters denied having said that; they also produced contemporaneous written summaries of their conversations in question. The attorney produced a memo to file, but it was written long after the fact.

The court sided with the insurance carrier, remarking that:

This finding is based both on [the adjusters’] demeanor while testifying and on the corroborative evidence of the claim activity log.

Attorney Crockett’s file notes, by contrast, were created many months after the alleged conversations, at a time when she had to rely on distant recollections and after she had realized that the limitation period might have run. [Emphasis and extra paragraphing added.]

Lesson: After any important oral conversation, it’s not a bad idea to promptly send a follow-up email confirming any important points of the conversation.

(Hat tip: Tara Kowalski of the Jones Day law firm.)