Texts, Tweets and Other Ways NOT to Talk

By Jennifer M. Paine

Attorney, Cordell & Cordell

Note: This is part 1 of a two-part series on the dangers of social networking in your divorce case. Part 2 discussed how you can still maintain your social network profile without compromising your divorce case.

With a few swift keystrokes, your case could go down in flames.

If you think I’m exaggerating, think about Tiger Woods, Jesse James or maybe even a friend of yours busted on Facebook with another woman, and think again.

It’s easy in our social networking gluttony where 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, and a status update or a wall post is the easiest way to tell your friends 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. (“Wait, what does hold harmless mean again?” 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 legal work now, you will save yourself from having to pay a lot more to correct the work later.)

So you will at times lose your sanity, get angry or want revenge, and be lured into that electronic community where you can vent for free.

However, one spur of the moment flippant text, tweet or Facebook post could live an eternity against you.

 

What Are They: 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; that 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 statements or assertive conduct used against him or her. For example, your wife’s e-mail from tax season that she under-reported profits from the part-time hair salon she runs is an admission if you offer that statement against her in order 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 Un-ring 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, your revenge-driven wife’s lawyer could admit an e-mail of you 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,” to prove that husband gambled the parties to debt or cares more about sex than his children.

Or her lawyer might print her status updates and tweets – in which you ranted about “having to go to court with that b****” and “refusing to give her a dime” – to prove that you disparage your wife and only want to avoid paying child support. Or her lawyer may demand text messages from you to prove you 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 exceptions, as they almost always are in the law. 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.

Note: This is part 1 of a two-part series on the dangers of social networking on your divorce case. Part 2 discussed how you can still maintain your social network profile without compromising your divorce case.

 

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims.

Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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