Okay, so as you know, the new X-Men film, X-Men: Apocalypse, see its release next week. The film’s bad guy is, well, Apocalypse, who you can see depicted on the cover of X-Factor #19, published way, way back in 1987. As we like to say, those were the day. Oscar Isaac of Ex Machina and The Force Awakens fame plays the title villain, so we have some faith that the movie will be a good one. Yes, we do plan to at least try to see it at one of the sneak previews next Thursday night. What else would we do?

Um, did you see the new teaser trailer for the new “Star Trek” television series?

Has anyone registered for the North Carolina Bar Association Annual Meeting, which takes place in late June in Charlotte? As he does each year, our own editor, Jim Dedman, will be attending (something which will be made far easier since the event takes place in his home city). We hope to see you there!

Speaking of Charlotte events, if you’re interested in learning more about “smart contracts,” the North Carolina Legal Geeks are hosting a free event next Thursday, May 26, right here in the Queen City. Attorney and legal hacker Tom Brooke will be speaking. For more information, see the event’s Facebook page here. (Note: One great part about the event page is the usage of Willie Wonka’s contract as the header image.).

By the way, that three disc Grateful Dead tribute album is out today.

Recently, we here at Abnormal Use wrote about a new lawsuit which seeks to hold Snapchat liable for a high speed motor vehicle accident that allegedly occurred as a result of the at-fault motorist’s use of the social media application. Thereafter, we decided to take a more hands-on approach to our work and signed up for the Snapchat. After a week of fiddling with the application, we have a much greater understanding of Snapchat and, thus, a better insight on the lawsuit. Hoping to help our readers who are strangers to Snapchat, we thought we would provide you with out observations and how they relate to the suit’s allegations.

As an initial matter, Snapchat is much different that any other social media app that we have ever used. While we admittedly don’t understand its purpose (perhaps due to our age or our familiarity with much different social media platforms), Snapchat is extremely easy to use. Users can create and post a “snap” with nothing more than the push of a button. When a user opens the Snapchat application, it opens immediately to the camera screen. A quick press of the camera button takes a snap photo. A longer press records a snap video. The user can then dress up the snap with emojis or filters (we will discuss this more later); however, it is not required. The snaps are then saved to the users “story” (which stays live for 24 hours) or sent directly to other users (which are available for 10 seconds after they are viewed). Unknown purpose aside, Snapchat cannot be any simpler.

Twitter and Facebook, on the other hand, require much deeper cognitive processing and interaction from the user. Even though users can (and often do) use the applications to post pictures or videos, Twitter and Facebook typically require the user to think of and type out a sentence or two expressing a thought. Twitter and Facebook require body movements analogous to sending a text message. From a mechanical standpoint, Snapchat and Twitter/Facebook are worlds apart.

What gives Snapchat its character is the ability to alter each photo. Where Instagram focuses primarily on preset filters and borders, Snapchat gives users more personal control over the editing process. At the touch of a button, users can add text, emojis, or drawings. Users also have access to a number of Snapchat filters which can add a somewhat bizarre twist to their photos (i.e. rainbows flowing from mouths, fire emanating from heads, etc.). The ease of use of each alteration is as simple as creating the photo or video in the first place.

The controversy in the Snapchat lawsuit centers around a Snapchat feature we refer to as the “speed filter.” The speed filter utilizes a phone’s GPS system to calculate the speed a user is moving at the time the snap is created. The speed reading is added to the photo/video from the editing screen with a simple swipe to the left. Like the other editing features mentioned above, the speed filter is available as an option only after the photograph or video has been captured.

Being dedicated to our jobs, we put the speed filter to the test. (Not behind the wheel of a car, of course). As a PASSENGER in the front seat of a car and again on the rear of a jet ski, we found the speed function to be fairly accurate, typically measuring speeds within 2-3 mph of that posted on the vehicle’s speedometer. However, the speed filter routinely registered 1-2 mph of speed when sitting still as if it was trying to compensate for the earth’s rotation. Nonetheless, its ease of use was as seamless as the other Snapchat features.

The most important component of our findings and perhaps the most relevant to the lawsuit is that we have yet to find any component of Snapchat that encourages users not to exercise sound judgment. Admittedly, we found no warnings apparent within the application notifying users not to use the speed filter while operating a motor vehicle. Last we checked, there are also no such warnings about plenty of other things which can distract drivers like changing radio stations, applying make-up, or reading the newspaper. We expect motorists to know better when getting behind the wheel of a car. The plaintiff in the lawsuit contends that Snapchat encourages such behavior by awarding users with Snapchat trophies for using the speed filter. It is true that Snapchat has a trophy system to signal various milestones and use of certain features. However, nowhere does Snapchat award a “Using the Speed Filter While Driving” trophy. The speed filter has a completely valid purpose for those traveling on a bike, a horse, a plane, or as passengers in car. We found nothing within Snapchat that encourages users to use the filter while driving or otherwise serve as a substitute for sound judgment.

When you understand what the speed filter actually is and how it operates, it becomes apparent that there is no difference between Snapchat and anything else that conceivably distract a driver.  Now that we can appreciate Snapchat, our initial concerns about the lawsuit resurface. Holding Snapchat liable in this lawsuit opens the door to a whole host of distracted driving lawsuits. Twitter, Facebook, service providers, and cell phone companies all stand in the shoes of Snapchat as potential targets. Taking the argument to its extremes could even lead to suits against any product manufacturer whose product was negligently being used by a distracted driver. The reason these suits are traditionally atypical is that fault lies with the distracted driver. By any negligence standard, the reasonable person knows better than to use a cell phone or application while driving. The true tortfeasor is easily identifiable. No filters necessary.

Don’t forget! If you are a South Carolina attorney, you must 2015-16 file your compliance report with the Supreme Court Commission on CLE and Specialization on or before March 1.

Remember that we have Leap Day on February 29 this year. Prepare yourself.

Are you following our law firm, Gallivan, White, & Boyd, P.A., on Facebook? If not, you can do so here. You’ll be able to keep up with all the news from our offices in the Carolinas!

Our favorite legal tweet of late comes from our editor, Jim Dedman, who recently attended the Hospitality Law Conference in Houston, Texas. It is self explanatory.

Um, I was told there would be no spider slides at the Hospitality Law Conference (@hospitality_law). #HLC16 pic.twitter.com/105DBDKyaY

— Jim Dedman (@JimDedman) February 24, 2016

As you know, we here at Abnormal Use sometimes contribute content to other publications, and this week is no exception. Our own Jim Dedman saw the publication of his “Social Media Discovery of Products Liability Issues” piece in the most recent issue of DRI’s Strictly Speaking (for which Jim happens to serve as editor). Here’s the first two paragraphs:

Much has been written about the value of investigations into the social media presence of Plaintiffs in litigation. However, such advice typically centers upon the potential discovery of statements or photographs which contradict a Plaintiff’s testimony about his or her damages. Many a diligent practitioner has located compromising evidence which impeaches a Plaintiff’s testimony as to his or her purported injuries or limitations. Practitioners should also consider expanding the scope of their social media discovery efforts to include a Plaintiff’s online commentary regarding the use of the underlying product in products liability cases. These days, in an era when individuals offer online commentary about the most minute details of their lives, take photographs of their meals in order to post such images on Instagram, or share with their online communities their latest purchases or experiences, there is an increasing likelihood that such individuals may have commented about the purchase or use of the products being litigated.

In a recent case, a Plaintiff spent considerable time and energy excoriating a product which she felt caused her damages. Specifically, in this products liability case which resulted in flooding and damages to the home, the Plaintiff utilized Twitter, Facebook, and a personal blog created solely for the purpose of exploring her damages related to the product and her home. Over the course of multiple blog posts, the Plaintiff attempted to portray herself as a burgeoning expert the types of injuries she claimed to have suffered. These posts were at least initially difficult to locate due to the fact that the writer had adopted a pseudonym of sorts, and thus, they would not have been located but for diligent efforts. Certainly, although this particular Plaintiff created far more online evidence than a typical litigant, claimants still seem to forget the potential effect of their online remarks on their pending or subsequent litigation. In light of these issues, wise practitioners should search not just for social media profiles but also more specific commentary by a Plaintiff relating to the product. This can be done in several ways.

You can read the full article here.

“No matter what the jury decides, the secret empire demands death,” proclaims the cover of Marc Spector: Moon Knight # 17, published way, way back in 1990. That doesn’t sound like something you would find in the pattern jury instructions, does it? We do suppose, though, that if your name is Marc Spector then you are somehow destined to become a cryptic superhero.

Congratulations to our own Ron Tate, who was recently chosen to receive the Home Builders Association of South Carolina (HBASC) Thomas N. Bagnal Associate of the Year award. If you’re not already following Ron on Twitter, here’s your chance.

Speaking of social media, don’t forget that you can follow Abnormal Use on Facebook! Click here to do so.

Our favorite legal tweet of late concerns the famous monkey copyright case. Enough said:

omg this entire intro is just amazing cc @sarahjeong pic.twitter.com/nFtLVm8DLs

— pacerrssscraper (@pacerrssscraper) November 7, 2015

Timing is everything in litigation. That’s certainly true in the discovery arena, even when dealing with the (still) relatively new field of social media.  Recently, Ernie Svenson a/k/a Ernie the Attorney wrote a fascinating post about the perils and pitfalls of subpoenaing Facebook for an individual’s social media profile and underlying private data.  According to Ernie, Facebook usually refuses to produce a meaningful subpoena response – the good stuff you’re hoping to get will likely not be in the company’s formal response. Accordingly, he offers some alternative approaches to obtaining that data through the formal discovery process. There’s not much to add to his very thorough post; but I would offer the following tips on timing such requests.

First and foremost, the investigating party should use informal means to capture or preserve any social media profiles on the litigant at issue.  There’s all sorts of articles out there on how to do just that. To this day, some users still maintain fully or partially public social media profiles (even after so many years of articles like these promoting social media discovery). One would want to promote and get views from The Marketing Heaven.  One can capture that data in a variety of ways, either by printing a PDF, utilizing a screen capture, video capture (if the case merits it), and/or saving the image files to one’s desktop in their original JPEG format for later usage.  Remember, too, to note the date, time, and manner in which the data was captured in case that information is needed later for authentication purposes.

It may be that your own informal searches and preservation will obviate the need for a subpoena to Facebook (which, as Ernie notes, will retain its own law firm to handle subpoena responses and ensure, as already noted, that your battle is costly and ultimately unsatisfying).  However, if you feel that formal discovery tools are still necessary, remember that when lawyers issue subpoenas, they necessarily alert their opponents to sources of relevant information. So, if you are going to tip your hand, and the case justifies it, the following is one potential approach.

To address all potential needs in one volley, you can simultaneously serve the following:

1) The subpoena to Facebook, using some of the helpful tips identified by Ernie in his post.

2)  Subpoenas to any other social media entities you have identified.  Once your opponent knows you are after social media data, it’s best to obtain all that you can in one fell swoop.

3)  Requests to admit seeking to authenticate the profiles you informally located.  In addition to the genuineness the profiles, you may also want to request that the litigant admit that he or she uses certain handles, user names, user numbers, or email addresses associated with the account.

4)  Interrogatories and requests for production seeking copies of the private areas of the social media profile.  As Ernie notes, you may wish to encourage your opponent to use the “Download Your Information” feature to capture all relevant data (although you should probably expect an objection that the information sought is irrelevant, overly broad, and unlimited in time).

5)  Supplemental responses to your opponent’s discovery to you.  It is likely that your opponent has served discovery requests that call for the information you have located.  Rather than resist that discovery, you may wish to supplement your responses to identify the data you have located (which you may already be producing in conjunction with your requests to admit).  This may assist you later if the court has any concerns about the profile data constituting an unfair surprise.

6)  Preservation letter.  In addition to the foregoing, you may wish to send your opponent a letter noting that you have identified this social media information and that you are aware of the likelihood of responsive imagery or text that is private which must not be spoliated.  You should go so far as to note that there can be consequences for spoliating social media data, just as there are for the purpose for inadvertent destruction of any evidence.

When one’s opponent receives the above volley of paperwork, he or she will most certainly be alerted to the fact that you believe that there is relevant social media data in the case.  But by serving all at once, you may protect yourself against potential spoliation of evidence (or at least preserve your ability to argue later that you advised your opponent to safeguard the data).

(This post was originally posted on the now defunct North Carolina Law Blog on November 16, 2011).

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).

Above, you’ll find the cover of Whiz Comics #64, published way, way back in 1945. We chanced across it this past week and felt compelled to share it here due to its reference to an attorney. “Attorney Killed In Home / Capt. Marvel Suspected of Murder !!,” the newspaper headline proclaims. We wonder how Captain Marvel found himself in this dilemma. Surely he was framed!

Goodbye, Jon Stewart.

Are you following Abnormal Use on Facebook? You can do so by clicking here!

Guess what? Our own Kyle White was linked this week by the New Jersey Civil Justice Institute. How about that? Click here for more.

Our favorite legal tweet of late is a couple of weeks old, but it’s a good one:

“The constitution? I’m really only into the early stuff.” – Antonin Scalia, hipster-originalist

— Jesse Thorn (@JesseThorn) June 26, 2015

So, it call comes back to “The Simpsons” sometimes. Above, you’l find an image of the “I Can’t Believe It’s A Law Firm” location. That, of course, is the headquarters of lawyer Lionel Hutz, who first appeared on the television series way, way back in 1991. Hutz, who was voiced by the late, great Phil Hartman, was always a favorite character of ours, for obvious reasons. We’ve yet to find a Simpsons comic book cover featuring the Hutz character, and so we may spend some time this weekend attempting to do so.

By the way, who is excited about the return of “Bloom County”? Back in 2011, we featured a legally themed “Bloom County” strip right here on Friday Links. Don’t remember that? Well, click here to revisit that post, which was dedicated to “Steve’s Law Tips.”

Remember four years ago when we compiled our giant list of songs about lawyers, judges, and attorneys?

Come on! You know you want to follow us on Twitter here and Facebook here! Join us on the social media and say hello!

We can definitely relate to our favorite legal tweet of late:

I love jury trials but the down side is things at the office don’t stop–so here I am in the office catching up after a 10 hour day in court

— Criminelle Law (@CriminelleLaw) July 14, 2015

For some reason or another, our WordPress platform is not allowing us to upload images today. Alas! What are we to do?

A question: Will “Ed,” the early 2000’s television show about the bowling alley lawyer, ever arrive on DVD?

Why aren’t you following Abnormal Use on Facebook and Twitter? You can do so here and here!

Our favorite legal tweet of late revisits a familiar theme:

DONT WRITE AN EMAIL YOU WOULDNT WANT TO READ IN FRONT OF A JURY

— InfoSec Taylor (@SwiftOnSecurity) July 7, 2015