Can Emoticons Beat the Hearsay Rule?

The question for today: Might emoticons assist in a hearsay inquiry?

That’s right. I just wrote that.  Let’s back up a bit and I’ll explain why that’s on my mind.

Carole Gailor of Raleigh, North Carolina recently spoke at a North Carolina Bar Association conference on the rules of evidence as applied to electronically generated information.  In so doing, she remarked upon the authentication and admissibility hurdles that litigants must confront when attempting to introduce electronic or digital evidence, such as emails, computer generated reports, social media profiles, and other such information.  However, she made a stray remark which prompted the law nerd in me to take particular notice.  Ms. Gailor noted that an emoticon might, in fact, assist in the analysis of whether a digital piece of evidence is admissible.

As a preliminary matter, we could turn to Wikipedia or Urban Dictionary or the like to find a formal definition of the term “emoticon.”  But that’s not really necessary, is it? But everyone knows that they are the little smiley or frowny faces – or sometimes far more complex textual graphics – utilized by writers on the Internet to convey all sorts of present emotions.

But why bother with a lay definition? A number of courts have already tackled the term.

A Westlaw search reveals that there are 26 reported state and federal cases which reference the word “emoticon” in the singular or plural, the earliest citation coming from 2004.  A handful of them cite to United States v. Cochran, 534 F.3d 631, 632 n.1 (7th Cir. 2008), which itself cited the Merriam Webster online dictionary. The most recent is this year’s State v. Jacques, 798 N.W.2d 319 (Table), at *1 n.2 (Wis. Ct. App. 2011) (per curiam). (“An ‘emoticon’ is a ‘group of keyboard characters … that typically represents a facial expression or suggests an attitude or emotion and that is used especially in computerized communications’ such as e-mail or instant messaging.”) (citing Cochran). There are other cases, as well. State v. Nero, 1 A.3d 184, 191-92 n.9 (Conn. Ct. App. 2010) (“An emoticon, as it is called in Internet vernacular, is a little cartoon face that can be added to the text of an instant message. The faces come in numerous expressions and are used to illustrate how the speaker is feeling or the intended meaning of what he or she has written.”); State v. Prine, 13 So.3d 758, 761 (La. Ct. App. 2009) (noting that an emoticon is “an online mode of expressing emotion”); Spanierman v. Hughes, 576 F. Supp. 2d 292, 312 n.13 (D. Conn. 2008) (defining emoticons as “symbols used to convey emotional content in written or message form (e.g., ‘:)’ indicates ‘smile’ or ‘happy,’ and ‘:(‘ indicates ‘frown’ or ‘sad’).”).

Most of these definitions state pretty clearly that the emoticon, by its very nature, is designed to convey the emotional state of the author of the statement which it accompanies.

The interesting question raised by Ms. Gailor is whether emoticons, in providing the recipient with a precise state of mind of the sender, aid in the admissibility inquiry.

Let’s turn briefly to the Federal Rules of Evidence.  Where might emoticons be relevant?

What about a “Then-Existing Mental, Emotional, or Physical Condition” under Rule 803(3), defined as “[a] statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.”?

That’s certain possible, and it might be that an emoticon could provide the statement with additional context to overcome a hearsay challenge.  If you could define or interpret the specific emoticon and argue that it established “then existing state of mind” or “mental feeling,” you might convince the court that the declarant’s statement can come into evidence.

Here’s a more fun one. Might an emoticon indicate that a statement is an “excited utterance” under Rule 803(2), defined as “[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused”?  Maybe.  That’s a bit trickier, because usually an excited utterance is spoken, not written. When excited, agog, or what have you, what declarant will pause to write a note? However, in the past decade, the deliberate nature of a writing has become, shall we say, far more casual in the era of text messages, Facebook, Twitter, and the like. The spontaneity of instant messages, texting, tweeting and other such forms of new communication make it more likely that a communication is truly instant.

In 1998, a Massachusetts court focused on the issue of whether a particular writing, a fax sent several hours after an assault and battery, could be a spontaneous exclamation and thus not barred by the hearsay rule.  Commonwealth v. DiMonte, 692 N.E.2d 45, 48-49 (Mass. 1998). In so doing, the court noted:

The defendant argues that the acts of drafting and transmitting a facsimile message deprive it of the spontaneity required by the hearsay exception for spontaneous exclamations. Writing, he contends, is an inherently premeditated process; manipulation of a facsimile machine, once a message is written, is an additional deliberated sequence of actions. He further argues that the recipient of a written message has no percipient experience of the sender at the moment when she writes and sends the message, and cannot testify to the sender’s demeanor, tone of voice, or degree of observed excitement or stress. The arguments are persuasive.

Those concerns – written when the communications infrastructure in place was far, far different than that of today’s are now 13 years old. Wouldn’t an emoticon provide some context in lieu of the percipient experience of the sender at the moment of the writing? Wouldn’t the instant nature of text messages or digital writings ameliorate the issues addressed by the court?

Now all we need is a text case.

(This post was originally posted on the now defunct North Carolina Law Blog on December 7, 2011).

New Suit Alleges Airline Cost-Saving Headed To The Toilet

Whether it is through added fees or the elimination of amenities, it is no secret that airlines have been looking at ways to save money. Such moves are the cost of doing business, we suppose.  A new lawsuit filed in the Philadelphia Court of Common Pleas, however, suggests that one airline is taking its cost-saving game to a whole new level. As reported by philly.com, five American Airlines workers have filed suit, accusing the airline of cross-using water jugs to transport toilet chemicals.  The water jugs allegedly come directly from the employee break room. The suit contains causes of action for public nuisance, fraud, and conspiracy; it also seeks an injunction for the airline to cease operations until the process is discontinued.

According to the report, the airline assumed the duty of cleaning its lavatories from an outside contractor in 2010.  The lavatories are supposed to be cleaned through the use of two pumps.  One to remove toilet waste from the lavatories and another to return deodorant cleanser, also known as “blue juice,” back into the toilets.  Unfortunately, the intake mechanism for the “blue juice” pump has allegedly broken on many Boeing 757s.  Rather than make the repairs, airline workers are allegedly directed to pour the blue juice into empty, 5-gallon water jugs and manually pour the jugs into the toilet.  Thereafter, workers allegedly return the water jugs to the break rooms without cleaning them. In turn, the water vendor picks the jugs up for re-filling.  And, so the alleged cycle of decontamination goes on.

As is the case with any new lawsuit, we here at Abnormal Use have no idea as to the merit of this case.  On the surface, the allegations certainly don’t seem to describe a sanitary practice.  On the other hand, we don’t know if anyone actually drinks from the uncleaned jugs. We would hope that after they are retrieved and replaced by the vendor that the vendor would also make investigate and/or clean them before placing them back in service.

We have to wonder whether this lawsuit addresses the drinking water itself or the process. In other words, could this be a case of disgruntled employees overburdened with the new task of manually refilling the blue juice?  If not, couldn’t this situation be remedied by having the employees transport the blue juice with a 5-gallon bucket rather than a jug?

Volkswagen In The News

Everyone knows the old adage from the sports world: “If you ain’t cheatin’, you ain’t tryin.”  Well, it appears that Volkswagen (VW) has been trying really, really hard when it comes to meeting vehicle emissions standards. Recently, it was revealed that VW was cheating on emissions tests for its “clean diesel” vehicles to make their emissions appear much lower than they actually were. VW has admitted that internal investigations have revealed that the “problem” may effect nearly 11 million VW vehicles world wide.

The issues stems from software on VW’s line of clean diesel vehicles that were apparently intentionally programmed to provide artificially low emissions numbers when connected to emissions testing devices. According to the EPA, VW programmed the engine management software in some diesel cars to activate emissions controls only when being tested. Those same cars would allegedly emit up to 40 times the allowed amount of nitrogen oxide when on the road.

The company is already under investigation by the EPA and the Department of Justice as well as government agencies in Germany, France, Italy, and South Korea. As if the potential for fines and criminal charges is not bad enough, civil lawsuits by consumers are already coming.  Stay tuned.  It should be a wild ride.

Friday Links

Sales of compact discs may be falling dramatically, but we here at Abnormal Use still but them. See here for the troubling news on this sales trend.

As you may know, the Perrin Asbestos Litigation Conference begins this weekend in San Francisco. Our editor, Jim Dedman, will be there, so if you see him, say hello!

We are pleased to announce that Gallivan, White, & Boyd, P.A. shareholder John T. Lay, Jr. has been named president-elect of the International Association of Defense Counsel (IADC).  The IADC is the preeminent invitation only legal organization for attorneys who represent corporate and insurance interests throughout the world. Lay will serve as president-elect from July 2015 until he is named president in July 2016.

Our favorite legal tweet of late is an oldie, but it’s a goodie:

More Monkey Business: Lawsuit Over Monkey’s Property Rights in Selfie

We recently reported on a New York case where the judge begrudgingly held that monkeys are not people in the eyes of the law. As you might imagine, PETA disagrees, and it has filed a lawsuit on behalf of a monkey named Naruto from Indonesia. The lawsuit, filed in federal court in California, alleges that Naruto has property rights in a selfie that he took of himself in 2011, which subsequently went viral. We’d post a copy of the photo, but we certainly don’t want Naruto suing us.

One of the defendants in the case is the owner of the camera that Naruto used to take the camera selfie. The lawsuit alleges that he has improperly reproduced and distributed the photo for which Naruto owns the copyright. According to the complaint:

While the claim of authorship by species other than homo sapiens may be novel, “authorship” under the Copyright Act, 17 U.S.C. § 101 et seq. , is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto. Naruto should be afforded the protection of a claim of ownership, and the right to recover damages and other relief for copyright infringement, as asserted on his be half by the Next Friends.
You may be asking what relief Naruto seeks as compensation. Bananas? Apples? Nope, according to PETA, what Naruto wants and needs is money. But, of course, Naruto is not a greedy monkey, so he doesn’t want the money for himself. The complaint requests that the disgorgement of profits from the prior sales and proceeds from future sales be given PETA to do with as it the pleases.
Attorneys, in light of these events, you’d best prepare your clients to enforce their property rights. You know the fox that was chased off that old abandoned farmland in order to clear the way for a McMansion neighborhood? Squatter’s rights. That bird with a nest in the tree that was cut down? Real property damage. The whale whose song was recorded underwater without permission? Copyright infringement. Here we go . . . .

Food Exec Gets 28 Years Jailtime In Salmonella Case

Last year, we reported on the criminal case against a food industry executive who was convicted of crimes related to a 2009 salmonella outbreak that sickened hundreds and may have contributed to the death of nine people. Nearly a year later, he’s finally been sentenced, and it is a really stiff one. Very recently, Stewart Parnell, former head of the Peanut Corporation of America, was sentenced to 28 years in prison for his crimes.

By way of refresher, last September, Parnell was convicted of 71 criminal counts, including conspiracy, obstruction, and introduction of adulterated food. The charges stemmed from Parnell’s alleged decision to knowingly distribute salmonella tainted peanut butter for sale to customers. Federal investigators uncovered years worth of emails and other records showing food confirmed by the company’s lab tests to contain salmonella was shipped to customers. Other batches of food were never tested but nevertheless shipped with labels that falsely indicated that they had been tested for salmonella.

The 28 year sentence handed down by a federal judge in Georgia is a no doubt a tough one and may effectively amount to a life sentence for the 61 year old Parnell. It is the biggest sentence ever handed down in a food safety case, but it is much less than the maximum of 803 years that he was facing. However, as The Wall Street Journal has pointed out, the recent sentences in similar food safety case were much much lighter to say the least:

…last April sentenced the owner of a large egg producer and his son to three months in prison for their involvement in a 2010 salmonella outbreak that sickened thousands of people and led to a nationwide recall. A Colorado judge sentenced two brothers to five years’ probation after the pair pleaded guilty to misdemeanor charges following a 2011 listeria outbreak linked to their farm’s cantaloupes that resulted in 33 deaths.

Nevertheless, even if Parnell did have any malicious intent, his actions seem to have been egregious and still caused a lot of harm. As such, the sentence seems appropriate. If nothing else, this case will likely demand the attention of food industry executives across the country.

Media Still Trying to Cash-In On Hot Coffee Buzz

We here at Abnormal Use have remained quiet on the hot coffee lawsuit front in recent months. While news reports of such suits often arise, we think we know when to stop beating a dead horse. After all, we have written on the subject of hot coffee lawsuits some 48 times, and there are only so many ways we can say that there is nothing unreasonably dangerous about a product meant to be served hot. Certainly, such dedication to the legal topic was foreseeable when Stella Liebeck ordered that 49 cent cup of coffee from a New Mexico McDonald’s 23 years ago.

That said, every now and again we must come out of hibernation.  And, for good reason. Just because a cup of coffee is a component in an accident case, it does not mean that the case is a “hot coffee case” or bears any resemblance to the infamous Liebeck verdict.  It is time the media gets the message.

Last week, myCentralJersey.com ran the following headline: “Dunkin’ Donuts will pay $522k to Somerset woman who tripped, spilled coffee on herself.”  Undoubtedly, the headline was designed to attract readers by drawing upon their passions for the Liebeck case.  Woman spills coffee on herself and gets a big settlement.  Sounds familiar, right?  We understand why a reader might click on that link.

The problem is that the case has little, if any, resemblance to the Liebeck case.  Upon a review of the article, the reader will see that the case sounds in premises liability – not an allegedly defective product. Back in 2012, the woman purchased multiple cups of coffee at a Dunkin’ Donuts. When walking back to her car, she tripped over an exposed spike from a dislodged curb stop. In the fall, she spilled the coffee on her face and neck. She also sustained lacerations on her hand and knee. While she was burned by hot coffee, there is nothing in the report about whether the coffee was abnormally hot or otherwise defective in any respect. In fact, the only quote found in the report comes from the plaintiff’s lawyer, and it, too, makes no reference to the coffee. Specifically, attorney Ed Rebenack said, “Basic property maintenance would have saved Ms. Marsala from years of debilitating injuries.” Clearly, it is a premises – not product – liability matter.

We understand the concept of clickbait. We also understand the need to draw readers to your site. But, for us legal geeks, the headline is painfully misleading to say the least. Yes, the plaintiff obtained a settlement based, in part, due to coffee burns. The case, however, is not a “hot coffee” case at all. Certainly, hot coffee purportedly contributed to the injuries, but Dunkin’ Donuts’ alleged liability rests with the conditions of its premises. The case would have been the same even if hot coffee was replaced with any other object picked up from inside the store capable of causing injuries. For example, if the plaintiff picked up a plastic knife in the store, tripped in the parking lot, and was stabbed by the knife, then the end result could have been the same. (We recognize this is a stretch, but, hey, it’s a hypothetical) Would the headline have read, “Dunkin’ Donuts will pay $522k to Somerset woman who tripped, stabbed herself with plastic knife”?

Absolutely not. Well, maybe, and if it had, we would have certainly written about those facts, as well.

There are some who will use this case as an example of the alleged dangers of hot coffee. Sure, hot coffee can cause burns.  That has never been in dispute. It is the liability for hot coffee that generates all the buzz. As ridiculous as we find those lawsuits, this case is not one of those. This is just a premises case that just so happens to involve a cup of coffee.  A report whose headline should have read,”Dunkin’ Donuts will pay $522k to Somerset woman who tripped on a dangerous condition in the parking lot, sustained injuries that just so happen to involve a cup of coffee.” That’s more like it.

The Evolution of Legal Mobile Devices

I have been practicing law for ten years now, but I remain reluctant to offer tales of how the profession used to be.  Ten years is not an eternity. Besides, there are lawyers out there who have been practicing thrice as long as I have, or more.  But when I first began to practice, way back in those halcyon days of 2002, lawyers were just beginning to use both the Internet, mobile devices, and such regularly in their daily routines.  So too were lawyers then integrating modern cellular telephones into their practice (although, of course, there were those early adopters with car phones and those terribly inefficient and wonderfully obsolete bag phones).

Recently, I spoke with a younger lawyer about mobile devices, and whether that young lawyer should purchase the new iPhone 5, an Android, or what have you, even an iPad or laptop.  I couldn’t help but laugh, because it reminded me of a fateful trip that I took, circa 2005.

At that time in my career, I was practicing with a firm in Texas, and I was traveling a good bit.  As fate would have it, my travels took me to Colorado – for the first time.  I remember arriving at my hotel, after flying from Texas to Denver and having to unpack all of my technology.

Of course, I owned a Blackberry, which at that time, did not have the ability to access the Internet beyond email.  Further, I had a second generation iPod, which, of course, was far more bulky than its modern day descendants.  (Even then, air travel, and the accompanying bustling about required by it, was intolerable without one’s iPod.).  Also, I had my own phone, one of those now archaic flip phones, which was required because the Blackberry telephone service was too expensive for my firm to reimburse, and thus, too expensive for me, and so I had my own phone with its own personal calling plan.  Finally, I had a laptop, which was required for more substantive work, as I could not access PDF or Word documents on my Blackberry.

I remember pausing as I unpacked these materials and thinking how ridiculous it was that I was forced to carry about so many items, all of which required their own separate and distinct charging cords.  So, I spent the next fifteen minutes finding electrical outlets in which to plug the charges for these devices.  As you can imagine, during the flight, all of the chargers and cords became intertwined, making the untangling enterprise as frustrating as possible.

Now, seven years later, I simply carry my iPhone and my iPad with me.  The iPhone alone is probably sufficient, and sometimes, I leave behind the iPad, but it’s amazing that all of those ancient devices are now merged into one with our new smart devices, whatever those may be.

Today’s young lawyers of today will never know that hassle.  And the lawyers of my generation will never know how frustrating it must have been to carry around all those reams of paper required when traveling in those fateful days of yore before mobile devices and laptops.  Yikes.

(This post was originally posted on the now defunct North Carolina Law Blog on Friday, November 9, 2012).

Friday Links

15811-2914-17616-1-star-wars

Above, you’ll find the cover of Star Wars #1, published way, way back in 1977 (the year the first film was released). We’ve been thinking about Star Wars a good bit lately in light of the imminent release of The Force Awakens. Question: When the new Star Wars film is released on December 18, will that day considered to be a billing holiday? Surely law firms large and small will all be closed that day to allow their employees to trek to the cinemas? If not, how will employee morale be affected? By the way, you can revisit our favorite Star Wars post (in which we question the legitimacy of the prequels in an April Fool’s Day post) by going here.

If you appear in South Carolina Courts via pro hac vice (or sponsor those who do), you may need to know this news. On September 9, the South Carolina Supreme Court amended the Verified Application for Admission Pro Hac Vice. To read the amendments, click here.

Our favorite legal tweet of late concerns that most frightful of courtroom scenarios:

South Carolina Supreme Court Establishes Civil Motions Pilot Program

Last week, the South Carolina Supreme Court established a Civil Motions Pilot Program to begin next month governing motion practice in the Third and Fifteen Circuits. Basically, the order follows the form of the federal rules. The pilot program will require contemporaneous memoranda in support of motions, and opposition papers to be filed within 30 days. It also features a number of new formal requirements. If you practice in those circuits, you’ll need to follow the new rules. Even if you practice elsewhere, you may wish to consider the new rules as some evidence of what the South Carolina Supreme Court believes to be best practices. You can read the court’s order here.