11 Jun Do You Have a Texting Procedure?
This is likely a frequent question asked during your annual E&O Plus reviews. Even in 2024, the majority of the time the answer is “no.” I believe most agencies don’t know how often communication between the client and the agency is done through text messages. And I am not talking about messages such as “What time are we meeting?” or “What time should I meet you at the golf course?” I am discussing text messages containing important information, such as key client purchase decisions.
Documentation comes in all shapes and sizes. It is widely known that at the time of an E&O matter, the level and quality of documentation will heavily determine the direction of the E&O matter. The key question is, “Will your documentation help or hurt you?”
When I ask most agency management, I often get a response, “We really discourage communication via text.” To which I respond, “Good luck!”
One of the first steps an agency should take is to ask the staff to honestly advise how often they are communicating with clients via texting. Management would probably be surprised by the response as texting in a business setting grows in popularity. Whether that is a generational thing or not is unknown. Still, if the response from the staff is “it happens once in a while,” that is enough to prompt the agency to develop and implement a procedure to ensure those text messages become part of the agency file.
I could provide a text procedure that one of my agencies developed. Still, at the risk of that procedure being outdated, I suggest getting some of your “techier” staff together to advise on the latest approach. Once again, the goal is to ensure the text messages, in their entirety, become part of the client file. In an E&O matter, the text message is an admissible document and thus could play a significant role in the litigation’s direction. So, the entire text message needs to be documented – not a condensed version – the entire text message.
Elevating the text message to an email platform (and then continuing the communication via email) is a common approach. The appropriate procedure should then be followed to store this communication in the client file. It is suggested that this approach be taken after the initial text message rather than waiting until the conclusion of the text message thread.
A couple of other key issues involving texting:
- The agency should avoid initiating the conversation via text, as this will prompt the client to pursue the same approach.
- The client should be advised (verbally and in writing in some manner) that coverage cannot be confirmed, bound, or altered without speaking to an agency representative. Essentially, use the same approach as you do regarding voicemail.
One issue that many do not realize is that use of your phone for communicating via texting could result in your phone being subject to subpoena and discovery in the event of litigation. I don’t know anyone that would be okay with that happening.