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Careful With That Text, Eugene, It's Evidence

Tonight's post about evidence is written by our Savannah attorney, David Purvis.

As a family law attorney, sometimes the parties' written communications have made my job of building the evidentiary wall that wins their case immensely easier. My client has repeatedly, in writing, shown herself to be the parent that makes every effort to find reasonable solutions to the issues between the parties. Or, the other party, in writing, has been ugly or difficult and opposed to resolving issues. Of course, I've also been on the other end with a client who has written voluminous amounts of material which damaged their case and made my job immensely more difficult.

Modern technology allows us more avenues than ever before to share our thoughts and feelings with each other and the world. Text messaging, email, and social media posts all allow us to put our thoughts into writing and to share them instantly. While this can offer some incredible benefits, in the world of family law it can bite you when you tell a judge that you have been the party acting fairly and earnestly when what you have written reads like venom.

To avoid this problem, here's what you need to do.

Take a moment

When I see texts, facebook posts, and emails between clients and opposing parties that are "cringe-worthy," they have often been written in the heat of battle. Just because technology allows you to instantly communicate with the written language does not mean you MUST instantly communicate with the written language. If you're in the middle of a heated exchange, take a step away, calm down, and return to the communication, if necessary, when you have your wits about you.

Anything You Say Can and Will be Used Against You

We are all familiar with Miranda warnings for criminal arrests thanks to television and movies. The "anything you say can and will be used against you" portion, rings true for family law cases. Your written and recorded words can and will be used against you. Even deleted messages can be recovered. In short, we live in a society now where collecting and saving communications for posterity can be all too easy. These can then be used in court either to build up your position or deep six it, depending on what you've said. 

Tone and The Inside Story

Sometimes, the fiery, "cringe-worthy" comment is in response to something seemingly benign from the other party. The client tells me, "well what they mean by that is ____ (insert devious or ugly remark)" or "I know how they think/speak, and the tone that it's meant to convey is _______ (insert devious or ugly remark)."

Tone in the written language is very difficult to interpret. For an outsider, it is often very difficult to know the precise tone or meaning behind words written by someone personally unknown to them. Just because the people engaged in the conversation may understand the deeper meaning does not mean the person (i.e. judge or jury) is going to take that same meaning when they read it.

Which brings me to my third point:

Know Your Audience

If you are in the midst of a family law case or one could be approaching, know that the words you put on paper today may very well be brought up in Court tomorrow. Your communications with your spouse or ex-spouse will be combed through and used either by your attorney or by your spouse's attorney. If the communication is relevant to the case, it may very well wind up before a judge or jury.

Choose your words carefully and understand that once written, those words will be tied to you and possibly used to judge you. Using expletives may make you feel like you're relieving stress or making your point at the time, but it's never fun to have to them read aloud while on the witness stand. Attorney: "And then what did you say to the mother of your children?" Witness: "I said, 'go f$@# yourself.'"

Being difficult to deal with simply for the sake of frustrating your ex or soon-to-be ex will not read well on paper later when you are trying to persuade the court to rule in your favor. Posting commentary publicly on your facebook wall about your family foibles rarely resolves any issue with the other party and generally only further exacerbates the situation. If you rely on your friends and family for support during your family law case, as you should, having an "old fashion" face-to-face visit not only eliminates the need to put your business out publicly on the internet, but will likely give you more of the support you're looking for in the first place. Emoticons do not replace actual tears.

One of my favorite sayings is: "a brick does not make a wall." Rarely does one piece of evidence win a case (Matlock was fictional) and it takes multiple pieces of evidence to build a solid wall of a case. Make sure that the bricks you bring to your attorney, the ones in which you have put thoughts into written words, are solid bricks with which to build a wall and not the dynamite that blows it up. 

David Purvis

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