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When someone gets themselves into a situation where legal action is likely imminent, common legal advice is to document as much as possible. For example, to get copies of letters, to save backups of important emails, and to document conversations.

If I am in this situation, and I've just had a conversation that would likely come up in future legal action, and this conversation was not recorded in any way, how would I go about 'documenting' this conversation?

Is it simply a matter of sitting down and writing out as much about this conversation as I can remember? What good would this do if it ultimately came down to he-said-she-said?

  • "Is it simply a matter of sitting down and writing out as much about this conversation as I can remember? What good would this do if it ultimately came down to he-said-she-said?" This is a good method. Regularly kept contemporaneous records of conversations are more credible than raw memories often from months or years earlier. Records such as these are the main means by which stock and commodity trades in financial markets that still have humans involved (often involving many millions of dollars a day of transactions) are documented even today. – ohwilleke May 15 at 0:48
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How can one document a conversation?

You might want to email your interlocutors reflecting the relevant details of what was spoken ("Per our conversation [...]", "For future reference [...]", and the like) and who said what.

In that same email, you should encourage the interlocutors to reply if they deem it necessary to clarify --also in writing-- any matter they think your email does not reflect accurately. The purpose of doing this is twofold:

  1. It will make it more difficult for them to perjure and to malinger "amnesia" if/when later on they testify under oath (whether it is at deposition or trial); and

  2. contemporaneous records reflect context much more accurately than witnesses's belated/after-the-fact testimony and trained by some lawyer to the effect of essentially avoiding examination under oath.

It is possible that your email will alert them to be more careful on what they tell you. They might opt to henceforth conceal information from you. Hence you need to ponder --based on the unspecified particulars of your situation-- the pros and cons of going this route.

For sure the interlocutors can always pretend they never saw or read your email. In fact, many witnesses unfortunately indulge in faking they "don't know" anything about the matters at issue. But, by securing this type of evidence, you will have over them an advantage nonetheless when it comes to fact-finding.

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@InakViggers has great advice, but there are ways to ensure that the E-Mail was sent, stored in a back up, and not alerting the party. First thing is that if you're trying to preserve conversation by follow up e-mail, have a third party who you can BCC your email to. BCC works like an e-mail's CC, except all recipients of the e-mail in the BCC line are not known to any other recipient. So if I send an Email to Alice, and BCC Bob, Bob will see that in addition to sending him an e-mail, I sent a copy to Alice, but Alice will see that I sent an e-mail only to her. This ensures that their is a separate person receiving the record and the e-mail isn't doctored by you. Bob will not receive responses from Alice, but you can always respond to Alice with a simple "Thank you" or other follow up.

In order to ensure that the e-mail is read, attach a read receipt to every email exchange you initiate with the individual. A Read Receipt is an auto generated one time e-mail sent to you from the e-mail's receiver upon the receiver opening the email for the first time. Read Receipts do prompt the email recipient for permission to send, which they can deny, but if Alice suspects you may want to have a proof of her reading your email and that proof will hurt her, she can always deny the receipt email going to you, but then invalidates any claim Alice has to reading it when she did not (since you have to open the email to trigger the receipt, so either Alice never opened the E-Mail, which shows she was ignoring the concerns OR she did, but hid the fact, thus ignoring specifics concerns of the e-mail).

  • A read receipt is a bad idea. Most legal systems don’t care if you read documents that are delivered to you - the mere act of delivery legally means the recipient knows the contents. By requesting a read receipt you have handed them an out from that legal presumption. – Dale M May 14 at 21:42
  • @DaleM: It would be more useful to document when they read the email vs. when they responded. – hszmv May 15 at 14:34
  • no, the law doesn’t care if the read the email - only that it got to a place where it was capable of being read. Just like a letter placed in a physical mailbox, an email that reaches the addressee’s system (not their inbox - a junk or deleted folder is fine too) has been legally read even if it hasn’t been actually read. Finding out when or if it has been actually read just confuses things. – Dale M May 15 at 20:06

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