Q: Can something you say in an email be the difference between winning and losing a lawsuit?

A: Maybe. It depends on what was said in the email, along with the other facts and circumstances of the case. An email can be used against a party - like any other statement made by them.

A: An e-mail may be admissible in evidence if a party can establish a hearsay exception and authenticate the communication. Hearsay is an out-of-court statement a party wants to introduce into evidence to prove the truth of the matter asserted. If made by a party, an e-mail may qualify as a party admission, an exception to the general exclusion of hearsay statements. The sender or receiver of an e-mail can testify to its genuineness - its authenticity.

Unlike TV and movie trials, real life trials rarely turn on a "smoking gun", a single piece of evidence that determines the outcome of a case. The moving party must establish its case by a burden of proof - either a preponderance of the evidence in a typical civil case, beyond a reasonable doubt in a criminal case, or clear and convincing evidence in a quasi-criminal civil case (adultery, fraud, etc.). A party may also have to overcome presumptions that establish a burden based on certain circumstances established.

In the case of an e-mail admitted as a party admission, the party is afforded the opportunity to explain the meaning and context or foundation of the statement in the e-mail. Many e-mails are ambiguous, or capable of more than one meaning. Also, people sometimes respond hastily or emotionally, and do not real mean what they state at any particular moment. In addition, an e-mail may be spoofed, or not created by the party whose name appears as the sender or receiver. The issue is far more complex than it appears at first glance.

Anyone interested in litigation in Virginia should consult with an experienced Virginia trial lawyer.

A: Of course, it can. An email is a written document, and, subject to authentication, which, arguably, is easier for an email than a letter, it is potential evidence. Early in the Internet Age, I used to love getting people to admit things in emails that they'd never write in a letter, and, to this day, I advise strongly against practicing law by chat or text messaging. Those are also written documents.