Although emojis have been included in smartphone operating systems for more than a decade, they are just starting to make their way into the world of litigation. While Apple’s emoji debut consisted of 54 emojis, made up primarily of different yellow smiley faces, iPhone now offers its users a broad range of hundreds of emojis, representative of different races, genders, cultures and religions. Today, there are close to 3,000 emojis in the Unicode Standard. As such, people can communicate a lot more through emojis, if they choose. And, the data shows this is what people are choosing. Over 10 billion emojis are sent each day throughout the world. Approximately 92 percent of all people who communicate online or through text messages on a smartphone use emojis, with more than one-third of them using emojis daily. Analysts have referred to the uptick in emoji use as “watching the birth of a new language.”
In 2015, emojis were mentioned in 14 federal and state court opinions. This number increased to 25 in 2016 and 33 in 2017. With the rules of the profession (Rules of Civil Procedure, Rules of Professional Conduct, Rules of Evidence) changing—slowly, albeit surely—to address the advent of social media and electronic communications, it is important to understand how emojis fit into the current legal landscape.
The Ethical Duty of Technology Competence
A lawyer’s fundamental duty has always been to provide competent representation. For years, competence included only a lawyer’s knowledge of substantive areas of the law, experience and skill to handle the representation adequately. As the times changed, and technology became more prominent in life and law, the meaning of competence expanded.
In 2012, Model Rule of Professional Conduct 1.1 was modified so that “competence” in representation includes being able to advise clients on the “benefits and risks of technology” in one’s area of the law. Since then, 31 states, including Pennsylvania, have amended their rules of professional conduct to include “technology competence” as a fundamental duty of lawyers.
The specific language used in each state’s rule governing technological competence varies. In 2014, Pennsylvania released a Formal Ethics Opinion (2014-300) titled “Ethical Obligations for Attorneys Using Social Media” in which it mandated that lawyers be aware of how social media websites operate and the issues they raise. The opinion notes that as the use of social media expands, so does its place in legal disputes, as well as the fact that most clients seeking legal advice have at least one account on a social networking site.
Without technology, emojis would not exist. Given the strength of Pennsylvania’s position on the importance of lawyers being competent in technology, particularly social media, every lawyer should be familiar with emojis and the potential issues they can cause in litigation. For litigators, an understanding of emojis and social media platforms can be critical. Not understanding these platforms can be a disservice to your clients, which can lead to discovery violations, malpractice and ethical violations. To that end, we are starting to see decisional law in this regard. See, e.g., James v. National Finance, 2014 WL 6845560, at *12 (Del. Ch. Dec. 5, 2014) (“Professed technological incompetence is not an excuse for discovery misconduct.”).
The importance of a lawyer’s understanding and depth of knowledge of emojis and social media varies based on their practice area. A lawyer who handles employment lawsuits, for example, is more likely to encounter issues involving emojis than one who handles regulatory litigation. Emojis are communications, however, and they can become an issue in any type of case. Therefore, all lawyers should have a working knowledge of emojis. As the rule of competence has proven to be elastic, it is important that lawyers be too.
Emojis Present Challenges in Discovery
Emojis can present difficulties in discovery. One such challenge is that it is very difficult to search for emojis. Given the volume of electronically stored information (ESI), parties in litigation will often agree to certain search terms to be used by the party making the production of documents as it is often not feasible to review all potentially responsive discovery to determine what should be produced. Using keywords replaces the obligation to review each document with only having to review and produce documents containing agreed on search terms. Emojis, however, at least for now, are very difficult to search for under most configurations. To produce more relevant results, many search technologies deconstruct and interpret documents and, attempt to limit junk content (e.g., spaces and punctuation). Emojis are usually part of this “junk content.” Where on survey estimates that 40 percent of data across messaging apps like iChat is emojis, this problem should not be underestimated. While this predicament is beyond that of most attorneys, e-discovery platforms are likely hard at work on a solution, as emojis present yet another business opportunity for them.
Another challenge emojis present in discovery is that their appearance is often device-specific. If the sender and recipient of an emoji are on the same platform and using the same version of the operating system (i.e., both sender and recipient are on iOS 12), then they should see the same versions of the platform’s emoji implementation. Where, however, the sender and the recipient of an emoji are not using the same platform, the sent emoji and the received emoji can be different, sometimes significantly. With this in mind, if an emoji becomes an important piece of evidence in a case, it is important for the lawyer who seeks to use it at trial to establish the operating systems of both the sender and the recipient. If the operating systems were different, the lawyer seeking to use the emoji must determine what the sender intended to send and if the sent emoji is materially different from the received one. In a world where emoji users now can choose between different races and genders (including gender neutral), the devil is in the detail, and this detail is one that should be considered.
Emojis as Evidence
With so many emojis being transmitted nowadays, it is increasingly likely they will be used as evidence in cases. The analysis of using emojis as evidence as trial is largely the same as it would be for any communication. One of the most common—if not the most common—objections to a “statement” is that it is inadmissible hearsay. In this sense, emojis are unique as they often constitute a statement, but not always. For example, depending on the context, a smiley face emoji with hearts as eyes could mean “I love you,” which is a statement. Alternatively, this same emoji could be used as a modifier of another statement it follows, indicating that the statement should be read “in a loving way.” In the latter instance, the emoji itself would not be a statement and therefore, could not be hearsay (although the statement itself could be).
Another consideration unique to emoji evidence, versus other communicative evidence, is how they should be presented at trial and published to the jury. Once a text message or other communication is determined to be admissible, it can be read aloud to a jury. In this situation, there is often no need to use a demonstrative exhibit of a long string of text. Where emojis are present, however, merely reading the text aloud is often insufficient. If a text message is read aloud to a jury and the emoji is omitted, the jurors will miss out on important context and be denied the opportunity to grasp the writer’s intent fully. Likewise, it should not be left to your opponent to explain to a jury the meaning of any emoji appearing in a communication. Each emoji is often subject to many interpretations, and even then, they are often used to mean something other than their true meaning. As such, communications with emojis being used as evidence, must be shown to a jury. If the recipient and sender of an emoji were using different platforms, it is important to show the jury what the message with the emoji looked like to each, so the jury can fairly and accurately weigh the evidence. A further discussion of this issue can be found in the matter of United States v. Ulbricht, No. 14-cr-68 (KBF), U.S. District Court for the Southern District of New York.
Emojis are here to stay. As is the case with many aspects of the legal profession, lawyers must be willing to adapt to changing times. Technology has brought some of the biggest changes to the practice of law and continues to do so. Lawyers should be diligent in remaining apprised of maintaining their competence in technology, which includes emojis and social media. Before you know, you and your adversary could be arguing over the true meaning of an emoji in your next case—perhaps with the assistance of expert emoji experts.
Edward T. Kang is the managing member of Kang Haggerty & Fetbroyt. He devotes the majority of his practice to business litigation and other litigation involving business entities. He gave a CLE presentation titled “Emojis Speaking Louder than Words” at the 2018 Annual Meeting of National Association of Minority and Women Owned Law Firms (NAMWOLF) in Chicago, Illinois.
Kandis L. Kovalsky, an associate at the firm, focuses her practice on representing both corporate and individual clients in a broad range of complex commercial litigation matters in Pennsylvania and New Jersey state, federal and bankruptcy courts.
Reprinted with permission from the October 18 edition of “The Legal Intelligencer” © 2018 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or firstname.lastname@example.org.