Emoji Law Part 3: How to Handle Emojis in Your Case with David H. Thomas

Join Reminger Co., LPA and the Columbus Bar Association for a collaborative podcast series on emoji law. Emojis (from the Japanese e, “picture,” and moji, “character”) are an increasingly important way that we express ourselves. It is estimated that 2.3 trillion mobile messages have an emoji or two.    

Though they can be cute and fun, emojis can also contribute to misinterpretations and misunderstandings. Disputes concerning emojis can arise in many different legal contexts and there are currently no court guidelines for how judges should handle or interpret them.  

We will discuss this burgeoning legal issue with various stakeholders including social media influencers and members of the bench and bar. 
 
In our third episode, Kenton Steele (Associate, Reminger Co., LPA) interviews David H. Thomas (Partner, Taft Stettinius & Hollister LLP). Dave discusses the proliferation of less formal/digital communications in legal cases, including:  

• Applying existing rules to help manage emojis in your civil and criminal cases 
• How to assign meaning and relevancy to emojis to establish authenticity and admissibility  
• Advice for attorneys to stay up to date on all types of digital communications

Transcript

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KHS    Kenton H. Steele, Esq.

DHT    David H. Thomas

KHS

Welcome again to this series on emoji law hosted by the Columbus Bar Association in conjunction with the Reminger Report Podcast on emergent technologies.  My name is Kenton Steele.  I’m one of co-hosts of the Reminger Report Podcast and I thank you again for joining us.  In our past episode on this topic, we explored a little bit of the history of how emojis came to be so prevalent in the way people communicate in this modern time.  We spoke with a social media influencer who uses emojis as part of his daily business and as this series continues, we’ll be speaking with members of the bench and bar about the growing importance of understanding emojis in the modern practice of law.  Today we’ll be continuing this ongoing discussion with the goal of gaining a better understanding of how emojis can present issues in a legal dispute and what to do to be prepared for encountering an emoji at the center of a case.  Now, to aid us in that discussion, we’re joined today by a special guest, David Thomas.  Dave, I want to thank you for joining us and if you could please introduce yourself.

DHT

Sure.  Well first of all, thanks for having me and thanks for all the work you and your colleagues are putting in to put on this podcast.  Here at the Columbus Bar Association, we’re really grateful to have partners like Kenton and Reminger doing all this hard work so thanks again Kenton.  So, my name is Dave Thomas.  I have the pleasure this year of being the President of the Columbus Bar Association.  When I’m not doing that, my day job is I am a partner at Taft Stettinius & Hollister where I’m a member of the corporate compliance and white-collar defense practice.  So what that means in a practical sense is that I’m a trial lawyer and I represent individuals and companies when they’re confronted with government investigations and prosecutions and for reasons both good and bad, emojis come up frequently in the matters that I handle.

KHS

And is that something that you see becoming more commonplace, digital forms of communication being at the center of the cases you’re handling.

DHT

Absolutely.  There’s a reason that lawyers call email evidence mail and the only thing that’s changing is the proliferation of platforms.  So, we don’t only have to manage email and letters anymore, but as you know, we don’t even have just text messages but we have WhatsApp.  We have Telegram.  We have Facebook Messenger.  All of which have been important players in many trials that I’ve been preparing for.

KHS

And, what advice or suggestions would you have for our viewers and listeners about how to prepare themselves for dealing with the type of authentication and evidentiary issues that can come up when you’re talking about communications that are not in your typical emails and certainly not in a letter that was mailed to someone but is a message from Facebook Messenger or a WhatsApp type platform.

DHT

Well, for the benefit of the potential clients out there, what I always remind them of is once you have clicked send, it’s out there forever no matter how secure you believe your platform is or your encryption protocols.  There’s a very real possibility that every single message you have sent to a person or group of people could become evidence in the future.  So, remember that before you click send.  For the benefit of the lawyers, you have to stay nimble.  You have to stay on top of the latest technologies and you have to make sure that you’re tracking the developments in information technology and electronically stored information.  And for us, what that means is not only staying current as lawyers but also making sure we work with vendors who can provide us expert assistance because I’m not smart enough to keep up with all of that.

KHS

Understood.  I’ve certainly had similar experiences finding, you know it’s out there, it just a matter of getting it in a format that you can review and use and understanding that process is certainly key to a modern practice.  But, with that proliferation of, of what I think of is less formal means of communication, right.  An email certainly carries a level of formality with it that isn’t there with a direct message on Instagram or a message on Facebook and in that less formal type of communication, I think emojis lend themselves well to that.  Are you seeing more emojis pop up in the communications you’re seeing in your cases?

DHT

Absolutely.  I just recently concluded a matter that involved tens of thousands of pages of Facebook messages over a period of years among groups of people and within those there were thousands and thousands of emojis.  Thumbs up, winky faces and all the other emojis that we’re all very familiar with.  And the timing and the placement of those emojis turned out to be a really critical issue in the evidence in that case.

KHS

And how did you go about sorting through those issues?

DHT

It was a challenge and I don’t think we ever found a perfect way to do it.  These particular communications were on Facebook Messenger.  Facebook does not always provide data in the most sortable way and confidence in the authenticity of the data that we received was low.  We weren’t exactly sure about how well the information had been preserved.  And it turned out that was really important because the timing of a person sending a thumbs up can be really important when you’re trying to understand whether, for example, a co-conspirator knew what his other co-conspirator was doing at a particular place and time.  So, unfortunately we had to do a lot of it by dead reckoning and what I mean by that is really just sorting through tens of thousands of pages of PDFs to try and figure out exactly who was doing what and when.

KHS

And that is certainly I think one thing that you’re, one way to approach sorting out those issues with emojis right is when you have thousands of pages of communications, you can kind of piece together by context what each of those sort of pictographs are being used to represent. What is being communicated with that.  I think one of the issues that we see when emojis present themselves in cases is every attorney is familiar with, you know, assigning the plain and ordinary meaning to terms that are in dispute, right.  You look it up in the Websters Dictionary.  You look it up in a legal dictionary.  But with emoji, it is not as simple as that, right.  They aren’t in the dictionary so figuring out what exactly does this thumbs up mean.  Does it mean received.  Does it mean I agree.  Those types of issues I think are something that, you know, practitioners are going to be struggling with until maybe someday we do have that sort of dedicated look up with the thumbs up means but in the meantime, any suggestions for the viewers and listeners on piecing together what those emojis mean.

DHT

Yeah, it’s, it’s a swiftly moving river of evidence, that’s for sure.  You know, I’m a trial lawyer and so I always go back to fundamentals and I go back to the Rules of Evidence and that helps me at least sift through these communications and what we’re going to do about them if we’re going to have a jury trial.  So, the first question that I always ask, the first question every trial lawyer should ask is, is it relevant.  And, that, the answer to that question may solve the whole thing right there.  Because if that particular emoji isn’t relevant, it’s whatever the critical issue is in the case then you never have to get to those next steps of interpreting it and so forth.  Now, if it is relevant, you’ve got to figure out if it’s hearsay.  And to me, that’s one of the really interesting questions with emojis is determining whether a particular emoji is hearsay.  And so, I always go back to the rules, as I said, and so I looked at Rule 801 which I brought here with me just to be sure I got it right, and Rule 801(A) under the Ohio Rules of Evidence says a statement is an oral or written assertion or a non-verbal conduct of a person if it is intended by the person as an assertion.  And, I think that as we see more emojis, we’re going to be going back to 801(A) in trying to determine if the winky face or the flexed arm or whatever the other emoji is, is intended as an assertion and I think that’s going to lead to some really interesting questions and some interesting case law as this issue continues to develop.

KHS

And, I think that that is so often the correct answer.  I, obviously, spend a lot of my time focusing on how do you deal with emerging technologies and what are the issues that they present in the law.  And, really, it’s often the case that the first stop is just read the rules.  Really dive into the details of that rule and I think the majority of the time you’re going to find your sticking point there.  Is it an assertion?  Does it fall within this definition or is it something else.  I think most of the time, that’s where your answer will be found.  As it may feel a little bit unsatisfying that that is really the answer is the fundamentals, right.  

DHT

That’s right.

KHS

Is there any additional, you know, projections you have for what we’ll be looking at down the road as emojis become more and more common place.  Anything that you would consider advice to, you know, our listeners and viewers, if they have an emoji come up that’s in dispute in a case, how to go about either presenting that at trial or making that make sense for their judge if there is for instance a hearsay issue to be decided, how to go about explaining that.

DHT

I think it’s going to be critical for practitioners to make sure they understand not only what the meaning of the emoji might be or the assertion, depending on what we’re dealing with, but you then have to figure out whether it’s authentic which is basically step 3 in the admissibility outline.  And so, that’s something that is on, was confusing enough when we were dealing with paper communications but it’s going to get even more confusion now that we’re dealing with metadata.  And so, you know, one of the things that can emerge as I mentioned earlier is it is not always clear when an emoji was either sent or received and the timing of that can totally change the meaning of it.  And the only way that we can get to the bottom of that is by analyzing metadata, working with experts in ESI and really putting these communications in context.  And so I think responsible practitioners really need to monitor that if an electronic communication is key in resolving a case.

KHS

And it really kind of brings up full circle around to where I think to where we started that, that is maybe the other component of knowing your rules, having a strong grasp of what is actually in the rules, and also staying abreast of those technological changes.  And I think if you have those two pieces, you know, well under control, there’s not going to be a lot that you won’t be able to handle.

DHT

That’s right.  The people who can put those two things together are the ones who are going to be really successful.

KHS

Alright.  Well Dave, I thank you so much for joining.  I’m sure that our viewers and listeners have hopefully found this to be enlightening and useful to them and you the viewers, thank you for joining us again.  Please be sure to join us next time as we continue our discussion about the role emojis play in the modern practice of law.