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The Immortal Text Message

By Guest Blogger: Michael J. Lentz, Esquire

The other day, a friend sent me a mass e-mail containing a document that he had run across on the internet and found funny and/or shocking. Like most of us, I get many of these mass-forwards, and I rarely if ever open them. This one, though, was followed immediately by a personal e-mail to me from the sender, assuring me that I’d be well advised to read the pseudo-spam.

The document was an opinion from the Family Court in Ontario, Canada. In something of a preamble to its opinion, the Court noted that the parties were characterized by “a harmful, high-octane hatred” of each other, and that, as a result, “the likelihood of an amicable resolution is laughable (hatred devours reason); and a satisfactory legal solution is impossible (hatred has no legal remedy).” The judge was of course correct; when emotions run high and litigation becomes intensely personal, the chance of a negotiated resolution becomes tiny. The parties’ animosity almost always condemns them to the time and expense (both emotional and financial) of a trial. Then, when the trial does happen, neither side leaves feeling fully vindicated, no matter who “wins,” because no court is equipped to address emotional and personal issues. A court simply cannot force people to like each other, or even to act like they do. Litigation is expensive and time consuming under the best of circumstances; when driven by personal animus instead of sound business judgment, it becomes even more so, with a substantially reduced chance of producing a satisfactory outcome.

Notwithstanding all of the foregoing, the most significant piece of the opinion for me was the Judge’s character determination, and how he reached it. He reduced the wife’s spousal support award to $1 per month, based largely on vituperative, hateful text messages that she sent to the children about their father. In his opinion, the judge sounded a cautionary note that we would all do well to heed:

Trials [now] typically include reams of text messages between the parties, helpfully laying bare their true characters. Assessing credibility is not nearly as difficult as it was before the use of emails and text messages became prolific.

The judge’s words should ring true, and sound a note of caution, to us all. We now live in an age where it seems that literally everyone carries a smart phone. Text messages and emails, containing photos and video at the option of the sender, can be sent and received in seconds. The technology allows us to remain connected to our world virtually wherever we go, and presents wonderful opportunities to share information. But, it also provides dangerous temptation. Words dashed off innocently but thoughtlessly in a text or e-mail, can (and often do) appear in quite a different light when printed out and presented during a deposition or trial years later.

Remember, as you text, Skype, and e-mail, that you’re creating a record that will certainly exist in some format long after you have stopped thinking about the conversation. The next time you’re confronted with the urge to send a hateful, nasty, or explicit text or e-mail, imagine your reaction at having the text read to you on the witness stand in court. Pause a moment if you’re able to, and perhaps you’ll hit “Delete” instead of “Send.”

Have questions about text messages and court? Leave comments below!

Michael graduated from Georgetown University Law Center in 1998. After spending five years with large Baltimore firms and three years as a solo and small firm practitioner, Michael joined Wagonheim Law in 2006, where he continues to utilize his extensive experience in commercial, bankruptcy, and appellate litigation to work with companies throughout the mid-Atlantic region.