MAY 2019 | AROUND THE ABA

#Whylawyersshouldcareabout emojis 😊, emoticons :) and hashtags

While emails and text messages have been common forms of evidence during trials for more than two decades, emojis, emoticons and hashtags are just now starting to make their way into the world of litigation as more and more people use them as a form of expression and in place of actual words. That’s according to attorney Courtney Fong, who served as moderator for the ABA webinar titled, “Emojis Speaking Louder than Words? The import of Emojis, Emoticons and Hashtags as Evidence at Trial and Beyond #😊”, sponsored by the Section of Science & Technology Law.

So as emojis continue to be used and interpreted by the courts, Fong said it is important that lawyers be aware of their significance, whether it be at trial or in the workplace, so that they can better advise and represent clients on issues relating to the meaning and admissibility of emojis and hashtags.

Fong is chief legal officer and chief privacy officer of Chicago-based The Computing Technology Industry Association (CompTIA). He was joined on the webinar by fellow attorneys Kandis Kovalsky and Edward Kang, both of Kang Haggerty & Fetbroyt LLC in Philadelphia.

There are more than 3,000 emojis today and research shows that 92 percent of people online use emojis and one-third of them use them daily. So, Kang said, it is no wonder that emojis and hashtags are increasingly appearing in lawsuits, particularly federal employment discrimination lawsuits:

  • Mentions of emojis in federal discrimination lawsuits doubled from 6 to 12 from 2016 to 2017
  • There were 57 cases in 2018 and 22 as of March 2019
  • Since 2010, employees have filed at least 39 federal discrimination, harassment or retaliation lawsuits that include emojis or emoticons in their allegations
  • The majority (30) were brought under workplace anti-bias laws, but emojis also have popped up in medical leave, wage-and-hour and other labor complaints.

“They are used by employers often to defeat claims by employees of harassment and wrongful termination,” Kang said. “But they can also be used by employees to support their claims of harassment and discrimination.”

Kovalsky said lawyers have an ethical duty of technology competence and pointed to the 2012 update of the ABA Model Rule of Professional Conduct 1.1 Comment 8, which was modified emphasizing that lawyers should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology in one’s area of practice. “The change incorporated emojis and social media,’’ said Kovalsky.

As the use of social media expands, so does its place in legal disputes. Hashtags influencing the legal industry include #Legal, #LawTwitter, #PracticeTuesday, #AppellateWriter, #AppellateTwitter, #InHouseTwitter, #LitigationTwitter, #TrialTwitter and #LadyLawyerDiaries.

There has been a recent development involving legal writing — which Justice Elena Kagan is quoted as saying “is a lot of banging your head on the computer monitor” — and that is the #CleanedUp Twitter movement. It began in March 2017, seeking to remove the clutter in citations and establish a new parenthetical (cleaned up) for citing legal authorities to indicate the removal of extraneous brackets, ellipses or nested quotations. Kovalsky said #CleanedUp has been used by judges in opinions in six U.S. Circuit Courts of Appeals; used in Supreme Court filings, every federal appellate court and many federal district courts and state courts across the country, as well as in many law reviews.

Chief Justice John Roberts is credited with the first use of a hashtag in a Supreme Court opinion, when he commented in the 2018 Minnesota Voters Alliance et al. v. Manskyet case that challenged the state law prohibiting voters from wearing clothing or items considered political while voting. Said Roberts: “Would a ‘Support Our Troops’ shirt be banned, if one of the candidates or parties had expressed a view on military funding or aid for veterans? What about a ‘#MeToo’ shirt, referencing the movement to increase awareness of sexual harassment and assault?” The court ruled that hashtag activism clothing is permitted while voting.

While judges often omit emojis and emoticons in their judicial opinions, there were three recent cases where they were included:

  • Eksouzian v. Albanese (C.D., Cal. Aug. 7, 2015)
  • Ragunauth v. Bisaillon (Conn. Super Ct., June 1, 2016)
  • Gonzalez v. Texas (Texas, Ct.  App., Jan. 25, 2017)

“The takeaway,” Kovalsky said, “is that judges should include emojis in their opinions, if possible.”

Kang said emojis can present challenges in discovery because they are difficult to search for given the volume of electronically stored information; they are usually device-specific and as such could result in different images being received, depending on the operating system; and it’s a challenge to decide how emoji evidence should be presented at trial and to the jury. “Say for example that a text is read to the jury and the emoji is omitted,” Kang explained, “then the jurors will miss out on important context and be denied the opportunity to grasp the sender’s intent fully.”

Emojis, emoticons and hashtags have added another dimension to the way we communicate and they are here to stay, Fong said. And the courtroom is no exception. So, lawyers must be willing to adapt to and embrace changing times. In other words, doing so can either leave you with a 😊 or leave you ☹! 

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