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Texts, Tweets and Other Ways NOT To Talk

file-20190318-28502-irx4gz.jpgWith a few swift key strikes, your case could go down in flames. If you think I'm exaggerating, think about Tiger Woods, Jesse James or, for you Detroiters, Kwame Kilpatrick, and think again. It's easy in our social networking gluttony, where friends from way-back-when are an internet connection away and your computer keyboard is your sounding board, to rant about your case. After all, it is mostly free, you don't have to pay your lawyer or your therapist to listen to you, your spouse or ex is not your friend or follower, everyone who is your friend and follower wants to know what's going on, and a status update or a wall post is the easiest way to tell them how you feel - exactly how you feel. And that's the problem.

Litigation does a whirlwind on your psyche. You will have to sign paperwork your attorney could explain to you ten times over and you still won't understand. ("So, 'hold harmless' means what?," you ask). You will have to sit in a courtroom and watch a judge listen to your case as if the judge (1) is mad at you or (2) will not listen to you or your attorney or (3) both. You will have to pay a lot of money, it seems, to get what you want. (If you pay for good work now, you will save yourself from having to pay a lot more to correct the work later.) And, so, you will at times lose your sanity, get angry or want revenge, or all of these things and then some, and be lured into that electronic community where you can vent at the click of the "Enter" key for free.

However, one at-the-moment, flippant text, tweet or post could live an eternity against you.

WHAT THEY ARE: E-ADMISSIONS

We call these texts, tweets, status updates, wall posts, etc., e-admissions. "E" because they are electronic. "Admissions" because they are the social networking era's version of the law's classic oral or written statement from the opponent - the possibly fatal statement that bursts into the middle of trial on a tape recorder or through a friend or a PI and proves your opponent is a liar or did X and not Y.

But isn't an out-of-court statement hearsay, you ask? Yes, but not from your opponent. "Hearsay" is an out-of-court statement or assertive conduct offered to prove the truth of the matter asserted (e.g., offering "John did this" to prove John really did do this). Hearsay is inadmissible as substantive evidence (to prove a fact in issue) unless an exception applies. Hearsay exceptions include dying declarations, excited utterances, present sense impressions, and tens of others for each jurisdiction. For example, witness Bill could not testify that "I heard X tell Y that the defendant killed the victim" unless a hearsay exception applied (perhaps X yelled in a fit of excitement).

"Admissions" are a party's out-of-court statement or assertive conduct used against him or her. For example, defendant wife's e-mail from tax season that she under-reported profits from the part-time hair salon she runs out of her basement is an admission if plaintiff husband offers that statement against her (e.g., to prove that she earns an income to pay her attorney fees). All jurisdictions characterize these statements as non-hearsay. Therefore, they are not subject to the hearsay rules, and the offering party need not find one of those tens of hearsay exceptions to apply before offering it into evidence. See, e.g., MRE 801(d)(1).

HOW THEY HURT: YOU CAN'T UNRING A BELL

Just as you can offer the judge or jury your opponent's crushing e-admissions, your opponent can offer yours.

The party may offer the admission into substantive evidence, i.e. to prove the matter asserted. For example, revenge-driven plaintiff wife's lawyer could admit an e-mail of remorseful defendant husband apologizing for "gambling away our savings" or "taking that trip with my secretary because I didn't care what you and the kids did at Christmas," which husband thought wife would appreciate, this sincere apology, to prove that husband gambled the parties to debt or cares more about sex than his children. Or, lawyer might print husband's status updates and tweets, in which he ranted about "having to go to court with that B****" and "refusing to give her a dime" to prove that husband disparages his children's mother and only wants to avoid paying child support. Or, lawyer may demand text messages to prove husband harassed her.

Even if they are inaccurate, untrue or heat-of-the-moment and poorly-thought-out comments, these admissions will do considerable damage to your case. Once the judge or jury hears them, that is it. Although your lawyer may request a limiting instruction so that the statements apply for some things (e.g. the speaker's credibility) and not others (e.g., the truth), it is impossible to forget a damaging statement. As the saying goes, "You can't un-ring a bell." Once they're heard, they will not be forgotten.

Granted, there are, as almost always in the law, exceptions. For example, admissions may not be admissible if they are made in connection with a criminal case later expunged, plea negotiations, settlement discussions or certain civil infractions. See, e.g., Pizzillo v Pizzillo, 884 SW2d 749 (Tenn Ct App 1994) (memorandum of father's admissions to child abuse in criminal case could not be admitted into evidence in later divorce case when criminal case record expunged).

More often, however, they are stored or saved somewhere in the e-universe, just a printer and a few sheets of paper away from becoming crushing blows in your case.

WHAT TO DO: OLD SCHOOL IT

How do you avoid that? The best thing to do is old school it - quit the texting and tweeting and updating altogether. (Be careful closing your accounts, however, and thoroughly discuss your plans with a lawyer, because some courts punish you for destroying e-evidence.) Do not update your accounts, post pictures, talk about your case with them, or do anything but leave them. Talk to someone you trust, be he or she your lawyer, therapist, friend or family, instead, privately and preferably in person, out of others' earshot and without writing anything down.

If you are too connected to your social network to quit, however, keep these tips in mind:

Never post pictures of your new car, clothes, trips, etc.: Your judge or jury is interested in seeing how you live. A few hours' testimony is helpful but not nearly as impactful as a few pictures of you driving a new car or posing on the beach during your vacation. If you claim you cannot pay your spouse's attorney fees, spousal support or child support, bragging pictures of new purchases are a death-knell.

Never assume your spouse is not a friend: Your spouse will read what you post. She will use a fake friend or a friend-of-a-friend, she could send a subpoena or she may compel you to print all of your postings (with a penalty of jail-time for contempt if you refuse). Unless she has committed fraud or has intercepted electronic communications in violation of federal law, those statements will come into evidence to hurt you.

Never type immediately before or after your court appearance: Court appearances are stressful, and when the event or results are not ideal or are confusing, or both, you will want to rant.

Never make new e-friends: New "friends" are a cheap and easy way to spy on a spouse. Avoid adding friends you do not know, have not spoken to in years, or know through your spouse, to your accounts. They have probably been sent to spy on you.

Never type without thinking, "How will this sound in court?": Think about every statement you make and ask yourself, "Would this sound bad in court?" and "How can I make this sound good, yet be sincere?" For example, forget, "I'm sorry I spent the weekend with Shelly and not the kids." Go with, "I'm sorry I had a momentary lapse in judgment; I am usually so focused on spending the weekend with the kids, as I have repeatedly during our marriage."

When in doubt over that new post, skip "ENTER" and press "DELETE." Otherwise, you could spend thousands fighting a case not over property and testimony, the time-tested evidence, but a la Jerry Springer over texts and tweets.

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