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This Is Your Brain On Text Messages

| Aug 20, 2011 | Uncategorized

There is something peculiar, even troubling, about text messages. They’re quick, easy and informal. They seem to cause even the most cautious businesspeople to let their guard down. They seem to have a way of causing people to say things they wouldn’t otherwise say.

And in the legal context, text messages seem to have a way of causing a Portland business litigation attorneys and Seattle commercial litigation attorneys, like those at Slinde Nelson, for example, to lose sleep.

Litigation is all about figuring out the strengths and weaknesses of your case early. Learn the universe of issues, facts and law — both good and bad. Predictability is the key, and text messages are, at least in this lawyer’s view, so unpredictable as to make them a litigation wildcard.

Increasingly, business litigators are starting to request text messages during the litigation discovery process. Computer and cell phone software applications are springing up that allow people much smarter than me to capture the text messages on someone’s phone and then print them in a readable format.

Cell phone carriers are increasingly being slapped with subpoenas for text messages. It should be noted that the ability to actually execute a subpoena with a cell phone company — even if your survive the 42 layers of bureaucracy with your sanity intact — is far from certain. Some carriers only deliver the “to” and “from” portions of the text without the actual text itself, and it seems like the ability to retreive subpoenaed text messages is changing daily.

What’s clear is that this practice is headed in only one direction: Text messages will become a bigger and bigger part of the business lawsuit process. At some point, they’ll be as easy to retrieve as emails — a.k.a., the biggest drag of today in the whole document discovery process.

The lesson here is simple: Be careful what you send. The more successful you are as a businessperson, the more you ultimately have to lose by sending a careless text. If you say something you don’t really mean, some smart, savvy lawyer sitting on the other side of the table in a deposition, or worse, at trial, will use it to their advantage. The old “but that’s not what I meant” defense isn’t exactly where you want to be if you’re in the middle of an important piece of bet-the-farm litigation.

Biting your lip — or, rather, holding your thumbs — is the best way prevent having to backtrack and explain some text message that was likely entirely avoidable in the first place.

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