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Friday, February 24, 2012

CU In Court: Texts Can Be A Divorce Lawyer's Dream

Texting

Americans have learned to carefully craft their Facebook postings, and edit and spell-check e-mails. But apparently we don't give text messages much thought, and they're providing abundant and effective fodder for divorce attorneys.

"A lot of people will draft a text at the spur of the moment, feeling hot and bothered about something, and off goes the text message" says Ken Altshuler, president of the American Academy of Matrimonial Lawyers. "But it's the same kind of written documentation that lawyers just love to go to town on."

In a recent survey, more than 80 percent of the academy's members reported an increased use of text messages in court. And Altshuler says once your words are in print, they're hard to disown.
"I have one husband, frankly, who said in a text message, 'I'm so angry at you right now I could kill you,'" Altshuler says. "He got charged with criminal threatening."

Tips For Keeping Your Texts Out Of Court

Attorney Ken Altshuler has this advice for anyone going through a divorce.
  • Don't write (text, Facebook, email, etc.) anything you wouldn't want a judge to see.
  • If you're receiving inappropriate messages from your spouse, don't respond inappropriately, because a judge will see that.
  • Don't send messages that clearly set your spouse up for an inappropriate or angry response.
  • If you're worked up and want to send your spouse a message, take time to calm down before putting anything in writing.
Just as with anything we say, these little missives can be taken out of context. But they can also reveal a stark truth. Altshuler says they have become key to cross-examination as a powerful way to undermine someone's credibility. Consider one husband's text to a secret lover that came out in one of Altshuler's cases: "We had a great time in Boston, I can't wait to see you again."

"Of course, you know, the person in that case said he was on a business trip in Denver," Altshuler says.
In one custody battle, Altshuler says a text message single-handedly won the case. The mother claimed the father's drinking problem compromised his parenting. But the father was an excellent witness. He said he hadn't had a drink in a year, and even his substance abuse counselor vouched for him. It was a classic case of "he said, she said," until Altshuler's client displayed a recent text from her husband asking her to pick up beer on the way home.

"He sat there and stared at the text message for about 2.5 minutes," says Altshuler. "He had no answer. Case is over."

A Treasure Trove Of Information
Stephen Ward is a private investigator with Pinkerton Consulting and Investigations. He says as technology improves, so does the potential for texts as evidence.
"Some people have text messages that go back years. It depends on the size of the phone," Ward says. "If you actually look at cell phones now, the size of the phone's memory is what most standard desktops were about two to three years ago."
It's a treasure trove of information, he says. But getting texts into court as evidence can be tricky, especially if it's a spouse's texts you're after. If you've stolen a password to access them, they can be ruled inadmissible. And if they're on a company phone?
"You could be looking at things that are trade secrets, that you're not entitled to see," Ward says. "It's actually corporate property, it's not yours, and you've done something completely illegal."
Ward says it's always best to let a lawyer subpoena a spouse's texts.
But even using messages from your own phone isn't always a sure thing. Lee Knott tried to submit texts from her ex-husband during a custody battle. She used an app to send them to her email account.
"And so each text message, even if it was only four words long, ended up taking a page," she says. "So that's hundreds of pages."
Knott says she got the sense the judge, in a rural part of Washington state, was overwhelmed and wary.
"The judge said that he didn't understand the technology, and that he could not be certain that it wasn't able to be tampered with," she says.

In fact, some states only accept electronic evidence if it's been gathered by a professional.
Lawyers love getting their hands on these smoking gun texts. But for their own clients, they have one overriding piece of advice: Don't write anything you don't want a judge to read.

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7 comments:

Anonymous said...

This is so ridiculous! The texts we send out are different than things we write because there just a conversation with that one person and you think it's JUST between you and the receiver. Of course your going to put in more inside jokes and say things that your more comfortable with through those means. Using that against you in court is just ridiculous.

Claude Marchi com101 hn4080

Art Lynch said...

Like it or not texts and e-mail go over public airwaves and across state lines (even when you call someone sitting at the same table) so they are considered public documents and and statements of record in court. This goes back to faxes and even simple memos before computers dominated our personal space. I have covered enough trials where fax, e-mail and texts are admitted in court

Tiffany M. said...

I agree that majority of the time people dont pay attention to what they say in a text; however, when it comes to a particular someone in which you know your not on good terms with....you should always watch what you say because you never know what can happen with the words you say. No matter what I think the public should always consider what they text before sending that message because it could be something that could haunt you for the rest of your life.

Anonymous said...

I can completely understand this. Once you said a message out into the world it is public domain and can be used against you. Nothing in cyberspace is private it can be seen by anyone and people seem to forget that. Actually it is the perfect type of communication to be used against you it shows you wrote it, when you wrote it, and documents what you where saying. That is why I simply never write online or through text message something that I do not want others to see. I also do not like talking about matters like that over the phone. You never know "big brother" could be listing.
Benny Ventresca COM101-4080

Anonymous said...

I sometimes find myself hating technology. I wish it didn't have to have such negative outcomes like our lack of social skills and privacy. It seems ridiculous that this should even be a problem. Technology should advance us, not step us back.

Chelsee Henderson
Com 101 4049

Anonymous said...

The problem with saying things that we may not mean or its taken out of context through text and online is only going to grow. I have noticed that the younger generation dont even hold a phone conversation. All they do is text and tweet. Its a shame.

Angela Mains
com 101 HN 4080

Anonymous said...

madison harper com 101 4044
This is a little too far in my opinion. Texts are no more than just conversations between two people that just happen to be written down. There is no privacy left in the world if the court finds that texts are allowed to convict another person. it's just another way the government tries to control us.