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Land Mine Emails

Clients have asked me if there are things that they could possibly do to assist them in strengthening their strategic-positioning in a case. One of the concepts I have created to assist my clients in strengthening their position is a concept called "Land Mine" emails. A Land Mine email is essentially a confirmatory email that is sent by the client to the opposing witness confirming a previous conversation or meeting. Embedded within this email will be a "land mine". This, therefore, is the distinguishing characteristic of a Land Mine email, versus a regular confirmatory-type of email. A confirmatory email simply acknowledges something that previously took place; wherein a Land Mine email is a purposeful email that is being sent to the potential opposing witness in anticipation that said witness will either: (1) agree to what the Land Mine email is indicating; (2) respond with some type of explanation; or (3) not respond at all - which may arguably be used as an adverse inference. The importance of the success of a Land Mine email is predicated upon the opposing witness's lack of knowing that the client is using an attorney, or has consulted with an attorney. If the opposing witness is aware that the client has spoken with an attorney, or has retained counsel, the opposing witness will be more on-guard with this type of an email. So, the chances of the witness showing the email to their attorney or being very guarded in responding to the email is greatly increased if they have reason to believe or know that the client has an attorney that they are consulting or have retained.

An example of a Land Mine email would be as follows: Say, for example, your client is a student and the student had a prior meeting with a professor wherein the professor indicated that he had concerns regarding the student's academic progress. The example of the Land Mine email to the professor would be: "Dear Professor, Per our meeting on February 10, 2015, you indicated that you had various concerns involving my academic progress. One of the concerns that you indicated was my apparent lack of preparation for exams, which you believe was a reason that I did not pass your recent midterm examination. As you indicated, you had mentioned to John Smith, a fellow student, my failing grade was an example of my not being adequately prepared, which is something that John should try to avoid. I will try my best to do better in this coming semester, and will take into consideration everything that you've indicated in our meeting. Thank you. Sincerely, {The Student Client}". Basically, you see in the example above a confirmation email, which confirms the time and/or location and subject of a previous meeting or conversation that took place between the client and the potential opposing witness. The client does not outwardly attack the professor and say, "How dare you mention my name to another student?" but finesses the fact that the professor indicated to the client that they had spoken about the client's failing grade with another student. The discussion of a student's confidential grade with another student is a potential FERPA violation. It could also be a violation of policy--it's supposed to be a violation of the school's internal policy, as well as a potential issue with the Department of Education, as there is a potential complaint against the professor's behavior, in the event that the professor is a certified teacher in the state. Accordingly, if the professor does not respond to the email, this could be potentially construed as an adverse inference as regarding acknowledging that they were in agreement. If the professor does respond and indicate that they did receive this email and that they're glad that the student will try to do better in the future, that's another tacit affirmation that the professor acknowledged that they apparently did speak with another student. If the professor was to write back and indicate something like, "Well, I understand what you're saying, but that's not exactly what took place with the other student when I discussed your failing grade with him or her", that still could be a potential tacit admission by the professor. In any event, the land mine was placed in the email.

Do not underestimate the power that these Land Mine emails can potentially have! For example, you can indicate in the Land Mine email a confirmation of a conversation, or point of knowledge, that you have concerning what the opposing witness has done. For example, let's assume that a teacher or administrator has tape-recorded and video-recorded a child doing something without getting the consent of the parent or guardian. Not only is this a potential administrative, civil and criminal violation (depending on the state), but this is also something that potentially can be utilized for some type of future civil litigation between the client and the school. That type of Land Mine email would state something like, "Dear Mr. Administrator, It is our understanding that you have been observing our child and that you believe our child is not behaving properly in the class room. We further understand that you have confirmed this type of behavior by a video and audio recording of our child engaging in these behaviors that give you concern. We would ask that you preserve and maintain any such evidence, so that we can review it. We understand that you took this action on your own accord without our agreement to do so, to try to express to us the concerns that you're having that are involving our son/daughter. We will review this information with you when we next meet. Sincerely {The Parent/Guardian Client(s)}". Again, it depends on how you want to utilize the Land Mine email, or what your general purpose or goal is in the case.

The Land Mine email should be something that your attorney helps guide you in preparing, since the attorney knows the potential future legal consequences that the witness and/or school may face. Therefore, by preparing you, your attorney may further increase the likelihood of the school, or witness, confirming one or more legal liability causes of action that the attorney may believe has been violated. This would further support its use as evidence. In conclusion, land mine emails are a very powerful strategic tactic.

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