The Oklahoma Bar Journal September 2024

client was able to open their phone and show the court the exchange. The court could then see that parts of the exchange had been omit ted, and it seriously damaged the credibility of the opposing party. Be aware of this possibility. In family law cases, there are now apps that can be used by trial lawyers for the effective presen tation of messages as evidence. These apps are extremely easy to use and are thorough in keeping a complete record of communi cations between the parties. Apps such as OurFamilyWizard 10 and TalkingParents 11 record a complete transcript of messages between the parties. The messages can be easily accessed on a phone, tablet or computer by not only the parties themselves but also the parties’ counsel and staff and any third party involved in the case, such as a parenting coordinator or guard ian ad litem . The messages are sep arated by topic and clearly marked with the date and time. These messages can be downloaded into a PDF format, and because the apps lay the perfect foundation, they can be properly and effectively used as admissible exhibits at trial. integral part of the evidentiary basis at trials in today’s society. More and more people are now choosing to communicate through electronic means – in particular, text messag ing. The advantage of this evolu tion in communication for a trial attorney is that it allows counsel to overcome our bias as human beings and present to the court complete conversations between parties. Attorneys can then use these PARENTING APPS CONCLUSION Text messages have become an

who the text message exchange was between and/ or did not establish it was the true, accurate and complete reflection of the text message exchange that occurred. O.S. §2107 – The entire text message exchange needs to be included. Attorneys can not cherry-pick the parts that are best for their clients and submit those. If this happens, a valid objection can be made as to the rule of completeness. 3) Hearsay Rule 12 O.S. §2802 – Hearsay evidence refers to any out-of-court statements offered for the truth of the matter asserted. This is a foundational rule of evi dence. Most times, hearsay evidence is not admissible due to the inability of the proponent of the state ment to be challenged through cross-examination. However, there are excep tions to this rule. 4) Hearsay Exceptions 12 2) Rule of Completeness 12 O.S. §2803 – Text message exchanges are hearsay as they are statements made by the opposing party. However, there is a hearsay exception for statements made by a party to the case. 9 Practically speaking, if the whole text message exchange is presented, the date (and ideally, the time) is indicated, and the com municating parties are identified, it is most likely coming in. There have been instances when unbe knownst to the opposing lawyer, the opposing party has provided text message exchanges that were incomplete and, thankfully, the

complete records to better articulate the facts of a case. For example, by referencing a particular text mes sage exchange, the trial lawyer can help explain why a party may have acted the way they did or show the bad acts of the opposing party. Charles Dickens wrote, “Electric communication will never be a substitute for the face of someone who with their soul encourages another person to be brave and true.” There may never be a more authentic and effective form of communication than a face-to-face exchange, but when properly and efficiently presented, text messages can be used by trial lawyers “for the win” at family law trials. M. Shane Henry is a trial lawyer and partner at Henry + Dow + Masters + Aycock, with offices in Oklahoma City, Tulsa and Norman. He practices in the areas of personal injury and family law. ABOUT THE AUTHORS

Ashley D. Rahill is the founder of and a trial

attorney at the Rahill Law Firm PLLC in Oklahoma City. Her practice is focused on the area of family law.

ENDNOTES

1. Ege Avci: https://bit.ly/3SkUJnH. 2. https://bit.ly/3SjXOVf. 3. https://bit.ly/3WgQwTb. 4. https://bit.ly/3ShZMVY. 5. https://bit.ly/3zRxzPn. 6. https://bit.ly/3YbgbPF. 7. https://bit.ly/3AbCWcw. 8. 12 O.S. §2302. 9. 12 O.S. §2801(B)(2)(a). 10. www.ourfamilywizard.com. 11. https://talkingparents.com/home.

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

60 | SEPTEMBER 2024

THE OKLAHOMA BAR JOURNAL