“This tastes like one billion smiley faces!”
That was my five-year-old’s recent review of the tacos his dad made for dinner. While it was surely an adorable sentiment, it also gave me pause. Are we so dependent on emoji for our everyday expression that we even use them orally in the place of descriptive words?!
The undeniable fact is that emoticons and emoji are making their way into everything, including the legal profession. Lawyers and judges should take notice, because the emoji are just getting warmed up.
At work, attorneys are wondering whether using emoji and emoticons with their clients or colleagues is appropriate. At least one study has found that using emoji in work e-mails makes you look incompetent :(. Others argue that the real danger is what might get lost in translation. Just like ambiguous e-mail tone (“Congratulations, I’m sure you’ll be really happy at your new firm.”), an emoji can be “read” multiple ways or even be flat-out mystifying (What does that Easter Island head emoji mean anyway?). The consensus seems to be that you should know your audience—“What’s acceptable at a laidback startup may not be acceptable at a corporate firm.” But in the legal profession (especially considering the need for utter clarity and professionalism with client communications), words might be the best choice.
Emoji are also finding their way into courtrooms across the country. Courts, familiar with interpreting statutory and contractual language as a matter of course, are now tasked with interpreting the meaning of a “tongue-out emoticon” (a Michigan case! :P) or the potential criminal intent behind an airplane emoji. My favorite example involves an Israeli couple who texted a landlord “a series of emoji, including a smiley face, a comet, a champagne bottle, dancing yellow Playboy bunnies and a chipmunk.” The judge fined the couple a month’s rent because the landlord, thinking that the couple had agreed to rent the apartment, removed the listing. Not surprisingly, disputes also arise regarding intellectual property rights in the emoji themselves.
Whether they make you smile, frown, or feel like a unicorn coupled with an exploding star and a piece of shrimp tempura, emoji are here to stay. You might even find one winking at you from inside your next case file.