“I say to her, 'Did you dictate the Pages Of Hell to Dante?' She answers, 'Yes, I did.'” – “The Muse” by Anna Akhmatova

 

Texting has been called “a brilliant way to miscommunicate how you feel and misinterpret what other people mean.”[1] The history of written communication can be traced back to around 3400 B.C. when humans expressed their thoughts with pictures and symbols.[2] You might say these were the earliest text messages, even though communication has evolved enormously since ancient times.

Text messaging in modern society has, in many ways, replaced other forms of verbal and oral communication. Prior to the early 1980s, when the fax machine became popular,[3] people primarily communicated in person, via telephone or through letters. Electronic mail (email) then gained popularity and was widely used beginning in the late 1990s.[4] So in the past 30 years, society has transitioned from face-to-face chats and phone calls to faxes, emails and, finally, text messages.

The first text message was sent Dec. 3, 1992, when Neil Papworth texted “Merry Christmas” to Richard Jarvis at Vodafone.[5] Originally, text messages were used mainly for personal communication, but over the past five years, their use has increased dramatically, replacing email for business communications at many companies. Millennials are the most prominently represented generation in the current workforce. Because this generation grew up with the gradual introduction of email, instant messaging and now text messaging, the latter is their most comfortable and preferred form of communication.[6]

It’s easy to understand why text messaging has become so popular – because it’s easy! The prevalence of smartphone ownership has given most of us the ability to communicate 24/7 via text message. Phone calls often require advanced scheduling and direct focus as opposed to text messages, which can be composed or read anytime users have a few free moments. Texting is quick and simple. It takes less time than a phone call or even an email.

Text messages are usually shorter than emails and take a fraction of the time a typical call requires. The rapid pace of modern society pushes us toward brevity in communication, and texts are the most concise form available. Thoughts are boiled down. Sentences are shortened. Punctuation is often absent. The idea is to communicate the message as concisely as possible. American linguist John H. McWhorter once said, “No one thinks about capital letters or punctuation when one texts, but then again, do you think about those things when you talk?”[7] Because so many of us today would much rather text than speak in person, it is not uncommon to hear someone say, “Text, don’t call.”

Pictures, emojis, GIFs and abbreviations are commonly used to communicate quickly via text message while adding some entertainment value. Users also utilize multimedia tools to text images, videos and audio clips. These types of text message communications do not even use written words to communicate messages.

The popularity of text message communication because of its ease, speed and adaptability, combined with its ability to transform and evolve with technology, suggests that it will continue to dominate in the future.

One of the primary responsibilities of a trial lawyer is to efficiently present their client’s evidence during trial without wasting time. As such, trial lawyers must highlight portions of content that are vital to the body of evidence. This is especially important because, like the public members in the gallery, the fact finder learns the case as it is presented. Understanding that judges are also humans with large caseloads, trial lawyers need to distinguish themselves from the monotony of line-by-line text reading during the presentation of a case. When properly and efficiently presented, however, text messages can be utilized by trial lawyers to gain success in family law trials.

 

THE ROLE OF TEXTS AT TRIAL

Trials are used to resolve disputes between parties who cannot otherwise reach an agreement. If the parties were able to work together to reach a solution to their issue(s), they would not be in the courtroom. This is especially true in family law trials.

Family law trials often deal with the division of two of the most important things in a parent’s life: their children and their money. With these paramount issues at stake, coupled with the breakdown of the marriage, it is no wonder these trials are so hotly contested. The parties are often in the middle of one of the most difficult situations of their lives as they fight over the most important things in their lives.

We all perceive and experience things through lenses unique to each of us. The same two people can be in a room when something happens only to describe two completely different versions of the event. This happens because we all perceive reality based on our history, views and personal experiences. Because those are different for each person, we impose unique interpretations on the actions of others. This is why parties often have very different versions of the “facts.” A good example is found in cable news. MSNBC and Fox News might cover the same event but provide completely different reports and interpretations. The same is true for the parties at a trial.

Differing perceptions lie at the heart of witness testimony in family law trials. Usually, the two main witnesses are the parties being divorced. These two parties cannot agree, and each wants different things. Simply put, their credibility is at issue. Who is reliable? Who can be believed? Who is telling the actual truth, and who is telling their own perceived truth? These are the questions running through the judge’s mind.

In short, the parties at trial are biased. They each see things in their own way and want opposite results. This is why evidence presented during direct examination has the least value compared to evidence brought forward on cross-examination and presented through tangible exhibits.

Text messages can be presented as exhibits that everyone can view at trial. The messages are often clear. The parties can each provide their explanations of the surrounding events, but the messages say what they say. Text messages are credible, reliable and unbiased. For these reasons, they are important evidence that can be pivotal in leading to trial outcomes.

STIPULATIONS AND PRETRIAL

Because text messages are important pieces of evidence, they must be utilized as exhibits at trial. To do so properly, they must be admitted into the record. This can be worked out ahead of trial through stipulations or pretrial rulings.

Stipulations come about when counsel agrees to the admission of certain exhibits. Effective trial lawyers aim to keep the judge focused on the issues that matter. They do not want to waste the judge’s precious time and attention on routine matters.

If the parties have each identified text messages as exhibits for trial, they can be discussed by counsel prior to pretrial. The text message exchanges must be complete, accurate and identifiable as to the timeframe. If these requirements are met, counsel can then agree or “stipulate” to their admission. This means they will come into the record, and no time will be wasted at trial laying their foundation.

When counsel stipulates to the admission of an exhibit, they still have the right to challenge the meaning, context and weight of the text message exchange at trial. A text message can often appear to mean something on its face yet have a completely different meaning once the context is explained. Stipulating to the admission of the messages does not mean the evidence cannot be challenged at trial. It just means the opposing lawyer acknowledges the foundation is proper. Judges realize and appreciate the professionalism of lawyers who provide reasonable stipulations. It also lends greater credibility to the objections the lawyer chooses to bring against non-stipulated exhibits.

If counsel is not able to obtain stipulations before pretrial, these can become major issues for discussion with the judge during pretrial. The offering counsel can explain the issue of admission and the foundational requirements. The judge will then allow opposing counsel the opportunity to state and explain their objections. The judge may then issue a conditional ruling as to admissibility or wait to rule at trial. Either way, it gives counsel the opportunity to discuss and explain their positions as to the admissibility of the exhibit during pretrial.

Significant trial time can be saved by using stipulations and exploring admissibility during pretrial. If depositions are taken, counsel may use that opportunity to lay the appropriate foundations. It is then easy to point to the transcript for the foundational elements for admission. These foundations can also be established during motion hearings that occur in advance of trial. Successful trial lawyers are always thinking ahead and planning for trial, much like expert chess players who always stay several moves ahead of their opponent.

TEXT MESSAGES AS EXHIBITS

Text messages to be used as trial exhibits must be sufficiently detailed for their proper foundation to be established. First, the parties involved in the communication must be identified. This is commonly accomplished by noting the names of the parties at the top of each message. The individual offering the text messages should also testify as to whom they were texting.

In addition, the date must be identified so the judge knows when the text communications occurred. A text message exchange that occurred five years prior to trial may not be relevant or carry the same weight as an exchange that occurred shortly before trial. The individual offering the text message exchange can testify as to the date, but best practices are for it to be noted in the messages. The text message exchange must be accurate. It cannot be altered. Finally, the text message exchange must be complete. One party cannot pick certain parts and omit others.

GETTING TEXTS INTO THE RECORD

When the proposed exhibit is marked for identification, the trial attorney addresses the judge and states, “Your Honor, may I approach the witness?” As counsel does so, they identify the exhibit on the record by stating, “I am handing you what, for identification purposes only, has been marked as Respondent’s Exhibit 12, and I would like the record to reflect that opposing counsel has been given a copy of this.” At that time, a copy is given to opposing counsel, or even better, the trial attorney has already given a copy to opposing counsel well in advance of trial. As counsel approaches the witness and hands them the exhibit, the trial attorney will say, “I am handing you what has been marked as Respondent’s Exhibit 12 for identification purposes only. Do you recognize this document?” And then, the trial attorney will begin to lay the foundation.

Next, have the witness lay the appropriate foundation with their testimony to identify and authenticate the exhibit. In the law of evidence, authentication refers to the procedure through which evidence – especially documentary and physical evidence – is certified to be authentic rather than counterfeited. One way to authenticate evidence is to have a witness testify as to the chain of custody from discovery to the time of trial.

If this occurs during cross-examination, the trial attorney can lead the witness by saying: “You agree with me that this is a text message exchange. This text message exchange took place on [state the dates identified on the exhibit]. This text message exchange was between you and the following phone number [state that number]. You agree with me that the phone number you recognize to be that of the Petitioner [or opposing party] in this matter. This text message exchange covers the discussion topic of [state the topic – for example, the kids’ drop-off location]. This is the text message exchange that occurred between you and the Petitioner in this matter. You recognize this, and this is the full and complete text message exchange that occurred on this date in regard to this matter.”

At that time, the trial attorney should turn to the court and move for admission by saying, “Your Honor, at this time, I move for the admission of Respondent’s Exhibit Number 12.” The court will then allow opposing counsel to lodge any objections and then rule on any objections. If no objections are made or they are overruled, the evidence is admitted.

When seeking to admit evidence into the record, the trial lawyer needs to remain persistent. If at first they fail, they should try to understand the opposing counsel's objection and think about how to overcome the objection. Usually, judges know that lawyers without sufficient experience will give up easily. Therefore, it is important to note that it is still valid when a lawyer continues down the path on which they started and makes multiple attempts to have evidence admitted.

As a practical suggestion, a trial attorney can talk about the exhibit and ask enough questions so that the fact finder will understand what the exhibit is and what the message contains. One of the rules that applies here is that they cannot directly reference the contents of an exhibit until it has been admitted into evidence.[8] When the exhibit is admitted, the trial attorney can start having the witness talk about the exhibit. Prior to admission, it is improper to have the witness talk about any of the contents of exhibits.

OPPOSING TEXT MESSAGES AT TRIAL

Below are common objections that can be made when opposing counsel attempts to admit text message exchanges at trial:

• Improper Authentication 12 O.S. §2901 – This objection is made when opposing counsel did not lay the proper foundation. Opposing counsel did not establish the date and time of the text exchange, did not establish who the text message exchange was between and/or did not establish it was the true, accurate and complete reflection of the text message exchange that occurred.
• Rule of Completeness 12 O.S. §2107 – The entire text message exchange needs to be included. Attorneys cannot cherry-pick the parts that are best for their clients and submit those. If this happens, a valid objection can be made as to the rule of completeness.
• Hearsay Rule 12 O.S. §2802 – Hearsay evidence refers to any out-of-court statements offered for the truth of the matter asserted. This is a foundational rule of evidence. Most times, hearsay evidence is not admissible due to the inability of the proponent of the statement to be challenged through cross-examination. However, there are exceptions to this rule.
• Hearsay Exceptions 12 O.S. §2803 – Text message exchanges are hearsay as they are statements made by the opposing party. However, there is a hearsay exception for statements made by a party to the case.[9]

Practically speaking, if the whole text message exchange is presented, the date (and ideally, the time) is indicated, and the communicating parties are identified, it is most likely coming in. There have been instances when unbeknownst to the opposing lawyer, the opposing party has provided text message exchanges that were incomplete and, thankfully, the client was able to open their phone and show the court the exchange. The court could then see that parts of the exchange had been omitted, and it seriously damaged the credibility of the opposing party. Be aware of this possibility.

PARENTING APPS

In family law cases, there are now apps that can be used by trial lawyers for the effective presentation of messages as evidence. These apps are extremely easy to use and are thorough in keeping a complete record of communications between the parties. Apps such as OurFamilyWizard[10] and TalkingParents[11] record a complete transcript of messages between the parties. The messages can be easily accessed on a phone, tablet or computer by not only the parties themselves but also the parties’ counsel and staff and any third party involved in the case, such as a parenting coordinator or guardian ad litem. The messages are separated by topic and clearly marked with the date and time. These messages can be downloaded into a PDF format, and because the apps lay the perfect foundation, they can be properly and effectively used as admissible exhibits at trial.

CONCLUSION

Text messages have become an integral part of the evidentiary basis at trials in today’s society. More and more people are now choosing to communicate through electronic means – in particular, text messaging. The advantage of this evolution in communication for a trial attorney is that it allows counsel to overcome our bias as human beings and present to the court complete conversations between parties. Attorneys can then use these complete records to better articulate the facts of a case. For example, by referencing a particular text message exchange, the trial lawyer can help explain why a party may have acted the way they did or show the bad acts of the opposing party.

Charles Dickens wrote, “Electric communication will never be a substitute for the face of someone who with their soul encourages another person to be brave and true.” There may never be a more authentic and effective form of communication than a face-to-face exchange, but when properly and efficiently presented, text messages can be used by trial lawyers “for the win” at family law trials.

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ABOUT THE AUTHORS

M. Shane Henry is a trial lawyer and partner at Henry + Dow + Masters + Aycock, with offices in Oklahoma City, Tulsa and Norman. He practices in the areas of personal injury and family law.

 

 

 

 

 

 

Ashley D. Rahill is the founder of and a trial attorney at the Rahill Law Firm PLLC in Oklahoma City. Her practice is focused on the area of family law.

 

 

 

 

 

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ENDNOTES

[1] Ege Avci: https://bit.ly/3SkUJnH.

[2] https://bit.ly/3SjXOVf.

[3] https://bit.ly/3WgQwTb.

[4] https://bit.ly/3ShZMVY.

[5] https://bit.ly/3zRxzPn.

[6] https://bit.ly/3YbgbPF.

[7] https://bit.ly/3AbCWcw.

[8] 12 O.S. §2302.

[9] 12 O.S. §2801(B)(2)(a).

[10] www.ourfamilywizard.com.

[11] https://talkingparents.com/home.