Text Messages as Evidence – Lessons from the Massachusetts Texting Suicide Case

If you followed the news today, you know about the guilty verdict in the texting suicide case taking place in the Massachusetts Juvenile Court.   In a well reasoned oral decision, Judge Lawrence Moniz  found the defendant, Michelle Carter, guilty of involuntary manslaughter through her numerous text messages urging her boyfriend to kill himself.  This case earned national attention as it concerned sensitive topics of teen bullying, suicide, and electronic communications.  Here, I want to focus on another important aspect of this case: the growing use of text messages as evidence.

Text messages, like most areas of technology, have changed a great deal over the past decade.  I remember when text messages were more of a novelty than an accepted means of communication.  Now, it is completely acceptable to use text messages to share important information.  This is quite a change from years ago, when many of us relied more on email and phone conversations to communicate.

The texting suicide case shows an important implication of text messages as a means of communication: these messages last forever.  Unlike a phone call, which is rarely recorded, text messages often remain in a cell phone or in “the cloud” permanently.  This has enormous implications, as the defendant in this criminal case learned the hard way.  If this defendant had urged her boyfriend to kill himself over a phone call, it is doubtful the Commonwealth of Massachusetts could ever have obtained the evidence needed to convict her.  This is an important lesson from this case: text messages as evidence have powerful consequences in legal matters.

A simple lesson should always apply to using text messages: if you text a message, be prepared for it being presented as evidence if a legal matter ever arises.  This is not the first (and certainly will not be the last) time that text messages are the basis of a legal matter.  Last year, the Massachusetts Land Court ruled that text messages could constitute a legally binding real estate contract, emphasizing how courts are adopting to electronic communications in civil and criminal cases.

In my practice, I take advantage of text messages as evidence.  Such messages are extremely credible and persuasive in presenting facts to a judge or jury.  However, text messages are worthless if these communications are not preserved and, most importantly, in a form available to present to a court.  You would be surprised at how many people are prepared to simply hold up their cell phone to show a text message to a judge or jury!  That approach doesn’t work; a court requires such evidence to be presented in a manner that can be part of a permanent record.

As an evolving area of the law, it is not completely clear on the best way to present text messages as evidence.  Most smartphones have apps that allow a user to turn text messages into PDF files, which can be printed and introduced as evidence.  This approach appears to be generally allowed by courts in accepting such messages into evidence.  For anyone with a text message that may be relevant to a legal matter, I recommend using such an app, as well as keeping the original text message on your phone and making a backup copy.  Like any piece of evidence, if it is lost, it isn’t much help to you.

 

What to Look For In Hiring An Attorney

Hiring an attorney can be an intimidating process.  You’re putting your complete trust in an unknown stranger, who is often making important decisions on your behalf.  Choosing an attorney is an important decision, and there is much advice on what to look for in hiring an attorney.  Here, I’m going to focus on something you may not think of: does the attorney know how to use technology?  It may not sound too important, but take my word that it is an important consideration in selecting a lawyer.

Permit me an example.  Several months ago, I gave a closing argument in an adverse possession case in Massachusetts Land Court.  Cases like these are highly fact specific, which required extensive citations to the exhibits before the file.  This trial, like most trials in Land Court, had a full transcript from a court reporter, allowing both parties to cite to specific portions of the record.  Following my opposition’s argument, I had the opportunity to offer a rebuttal.  In my rebuttal, I argued that the other side had missed a key fact, and I gave the court the specific page of the transcript where this was found.  I did so through the help of my Microsoft Surface, a hybrid laptop/tablet that allows me to bring my case files to court.  I can access any document I need in seconds, which prevents me from bringing massive paper files to court.  Not only did my Surface help me get the information I needed for my closing argument, it saved my clients money: I did not need to print out a full copy of the trial transcript or other relevant papers for the case.

I use technology on a regular basis in the practice.  One of my other, favorite devices is my high speed scanner, which helps to make PDF copies of all of my documents.  This saves me (and my clients) without having to spend unnecessary money of a large office space and storage, and also lets me transit important documents to my clients by email, right away.  I’ve written about the importance of using technology in a law practice and I believe strongly that technology is as much to my clients’ benefit as it is to mine.

So, in considering what to look for in hiring an attorney, I suggest asking a potential lawyer how they use technology to run their practice.  A lawyer who keeps on top of the newest tools for practicing law will be the lawyer who get give you the best outcome…at the lowest price to you.

 

Sherwin Law Firm Succeeds in Rescission of Contract Case

I’m pleased to announce that I prevailed last month in a rescission of contract case in Essex Superior Court.  The case involved many important issues involving real estate contracts and the relief that a party to such a contract can obtain from a court if the agreement runs into problems.

Overview of Case

This case involved an oral agreement between two parties for the purchase of a residential home.  The deal involved the payment of cash and a promise by one of the parties to assume the mortgage loan.  This required the buyer to apply for the mortgage loan to be put in his name, so that the seller was no longer responsible for the debt.  This deal was done by a “handshake”-the parties never put the terms of the agreement in writing.

Several years after this deal was made, the seller believed that the buyer had not fulfilled the terms of the deal, and brought a lawsuit seeking a rescission of the contract.  A rescission of contract is an action seeking to “undo” a contract.  This asks the court to unmake the agreement and put the parties back in the position they were in before the deal was made.

What is a Rescission of Contract?

A rescission of contract is not readily allowed by courts; only certain circumstances will justify this relief.  Rescission is generally only allowed in cases of fraud or when a party has committed a material breach of contract: one that defeats its purpose.  Here, the seller in this case was alleging this latter reason for seeking a rescission of contract, by arguing that the buyer (my client) failed to comply with important terms of the deal.

Outcome of Case

My strategy in this case was to convince the court that my client had done what was required of him per this agreement.  Because this was an oral agreement, this required me to attack the other side’s credibility and build a case that the seller’s story was not believable.  In the end, the Court agreed with my client, finding that he had done his end of the deal.

Such a case required an enormous amount of preparation and research.  As it came down to a decision by the court on who was more believable, it was essential that my client correctly told his story, and for me to highlight the inconsistencies in the other side’s version of the facts.

Conclusion 

This case highlights an essential lesson in entering into a contract (especially one involving real estate): put the deal in writing, and get the assistance of an attorney.  If the deal “goes bad”, as this one did, having a written agreement can spar you enormous time and money if a problem arises later on.   If you find yourself in a dispute over a real estate contract, contact me for a consultation.  Having an experienced attorney on your side is essential in a matter like this.

On a side note, one of the benefits of this case was having the opportunity to do a trial in the Newburyport branch of the Essex Superior Court.  This building, hands down, is the most beautiful courthouse in Massachusetts, and is setup in the style of a New England town meeting hall.  The picture above was taken by me with my drone, across the pond where the courthouse sits.