All Tech Considered
10:01 am
Thu February 23, 2012

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

Originally published on Fri February 24, 2012 5:36 pm

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."

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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Transcript

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Social media and smartphones have transformed how Americans meet and mate. Technology is also changing how couples split up. When people have affairs or misbehave, they leave not just a paper trail but an electronic one that's just as incriminating. NPR's Jennifer Ludden reports on a new survey of divorce lawyers and it reveals a big rise in the use of text messages as evidence in court.

JENNIFER LUDDEN, BYLINE: Americans carefully craft our public image on Facebook. We edit emails, spellchecking, rewriting, but text messages? Ken Altshuler, head of the American Academy of Matrimonial Lawyers, says we don't give those much thought.

KEN ALTSHULER: So what happens is a lot of people will draft a text at the spur of the moment, feeling hot and bothered about something and off goes a text message, but it's the same kind of written documentation that lawyers just love to go to town on.

LUDDEN: More than 80 percent of divorce lawyers report an increased use of text messages in court and Altshuler says, once your words are in print, they're hard to disown.

ALTSHULER: I have one husband, frankly, who said in a text message, I'm so angry at you right now, I could kill you. And he got charged with criminal threatening.

LUDDEN: Just as with things we say, these little misses can be taken out of context, but they can also reveal a stark truth. Altshuler says they're key to cross examination, a way to undermine someone's credibility.

Take this text to a secret lover.

ALTSHULER: We had a great time in Boston. I can't wait to see you again. And, of course, you know, the person in that case said he was on a business trip in Denver.

LUDDEN: In one custody battle, Altshuler says a text message singlehandedly 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 drunk in a year and even his substance abuse counselor vouched for him. Classic 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.

ALTSHULER: He sat and stared at the text message for about two and a half minutes. He had no answer. Case is over.

STEPHEN WARD: Some people have text messages that go back years. It depends on the size of the phone.

LUDDEN: Stephen Ward is a private investigator with Pinkerton. He says, as technology improves, so does the potential for texts as evidence.

WARD: If you actually look at the cell phones now, the size of the phones' memory is what most standard desktops were about two to three years ago.

LUDDEN: A treasure trove of information, Ward says, but getting texts into court as evidence can be tricky, especially if it's a spouse's text 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, watch out, says Ward.

WARD: You could be looking at things that are trade secrets that you're not entitled to see. That's actually corporate property. It's not yours and you've done something completely illegal.

LUDDEN: Ward says it's always best to let a lawyer subpoena a spouse's text, 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.

LEE KNOTT: And so each text message, even if it was only four words long, ended up taking a page, so that's hundreds of pages.

LUDDEN: Knott says she got the sense the judge in a rural part of Washington state was overwhelmed and wary.

KNOTT: 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.

LUDDEN: 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.

Jennifer Ludden, NPR News, Washington.

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