A “Thumbs Up” might seem like a harmless response to a text message, but it turns out it might not be so safe for work after all. In this episode, Professor Eric Goldman delves into the legal implications of emojis and how they can influence the outcome of a case. He offers valuable tips on handling discovery when emojis are critical evidence and explains why you should be cautious when expressing enthusiasm with an emoji string. Welcome back to class.

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Listen to the podcast here

 

NSFW? Emojis and The Legal Department: Eric Goldman Professor, University of Santa Clara School of Law

Introduction To Professor Eric Goldman And Emoji Law

My name is Eric Goldman. I am a law professor and associate dean for research at Santa Clara University School of Law, where I focus on Internet Law. A fun fact about me is that I have over 400 different items in the Slinky brand, ranging from metal and plastic Slinkys to a wide range of characters that have been created for them to a bunch of stuff that no one has ever seen before. I am a Slinky collector and there aren’t many of us in the world.

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On this episode, I’m excited to welcome Professor Eric Goldman of Santa Clara Law School. He’s a professor and holds several exciting administrative roles. He is also the co-director of the High Tech Law Institute at the law school and is a prolific blogger, writer, and speaker on many high-tech topics. We’re going to dig into one of his favorites, Emoji Law. Eric, how are you?

I’m great. Thanks for having me on.

I’m so excited about this. I do a variety of different episodes on the show and a lot of professional development. I also like to do some technical and practical episodes that give some news you can use for the in-house community. A listener suggested that I find the law professor at Santa Clara who specializes in Emoji Law because they thought this was an interesting area. I had never even thought about it. In your blog, you do an annual survey of emoji cases. I think that number has been on a sharp upward trajectory. In 2023, there were 225 cases. Does that count right?

That’s about right. It changes all the time because I get late reports of cases, but it is on the J-curve of growth. As more litigants are introducing evidence that contains emojis, it’s percolating up through the system or through that pyramid of litigation to decisions. We’re seeing more and more emojis popping up in the opinions.

Types Of Cases Where Emojis Are Significant

It’s so interesting because I think we take for granted that we’re on our phones at work. We have IM functions, chat, Slack, etc. Emoji’s use feels like a fun way to lighten the conversation. As your work shows, that can go wrong. Based on the cases you’ve surveyed, what are the types of cases where emojis have factored in significantly?

I did a pie chart that tried to show the different allocations, but I haven’t updated that recently. When I did the analysis, the number one plurality of the cases was what I call sexual predation cases. The standard facts would involve an older male looking for sex with a younger female, although there are variations in all directions on that.

There would usually be some chat log or message log that would take place between these two people. Often, the younger female would be a law enforcement officer undercover. They would be capturing these logs as part of their standard case preparation. That evidence would get introduced in court to show the defendant’s interest in trying to obtain sex from a minor.

Some of the other cases that we see on the rise are murder cases. The reason why murder cases show up is that these cases usually involve every possible angle. Any evidence that might be relevant gets introduced because the stakes are so high.

Just by the volume of evidence in a murder case, we’re seeing more emojis pop up there. They also show up in workplace harassment and discrimination cases. The same basic theme applies, some message logs will be part of the evidence that shows the workplace was either engaged in discrimination or harassment. Those are the big three categories that I’m seeing now, the sexual predation cases, the murder cases, and the workplace cases.

You do a lot of writing around this. We don’t have the benefit of visuals in this conversation, but there can be differences in how emojis show up on different platforms, and that can be an issue. Is there maybe a generational difference in how people interpret emojis? We have a judge and a jury whose job is to interpret evidence. Those folks could be older or younger than the defendants. I would think they are probably older. I know from my kids that they think you’re being funny or they think you’re being dumb when you use certain emojis.

As a law professor, anytime anything involving generational slang reaches my attention, it has been years out of date, and I don’t try. If I do, it is embarrassing because I am using antiquated slang that is almost certainly out of context or lacks the nuance that the original slang would have expected. To be clear, emojis do develop slang meanings based on generations, geography, and other kinds of community boundaries.

That’s nothing unusual. Almost every way that we talk to each other develops slang. This includes words, hand gestures, and colors. Anything that we do to communicate with each other as humans, a slang definition will emerge in certain communities.

I don’t look at emojis as unique, special, or different, although we have to be aware of it. If we think there’s a single canonical definition of an emoji, we’re probably not properly accounting for slang, maybe because we’re not in the community where that slang has emerged. The fact that there’s slang is not that unusual. That’s pretty standard for how we talk to each other.

You’re right. It’s great to have that context because it does feel that emojis are opening to a new world. You can think you’re intending one thing when you put something in a text message, but it could be received another way. I know there are a couple that you write about that are most commonly misunderstood. Can we talk about a couple of those?

Once again, if we’re talking about anything that I become aware of, odds are that it has become out of date again. I have to pull up the specifics. For example, the one that was most grossly misunderstood was the cowboy hat emoji.

I don’t know what that means.

I still don’t know what it means. I wouldn’t use it in any way that would be relatable to anyone who is using that. I’m guessing that’s more of a generational thing, although there might be other ways in which there are schisms. I don’t know what that means. I don’t understand it. If someone is using that with me, I can only maybe possibly guess what they mean. That’s not that unusual. I’ll be honest, I don’t know how long this podcast will be around, but today, I don’t know what a brat is. I know that that’s important to a younger generation. That’s okay. I live in my own naivete.

I know you mentioned cultural differences, like the thumbs-up emoji. I read your article. For me, the thumbs-up is yes. It’s an affirmative emoji. You said in some cultures that can be offensive. That can be a swear almost.

It’s the same as the middle finger in sometimes what’s called Eastern culture. We have to be very careful about Eastern because that assumes that there’s a relatively fixed point to make it. Yes, in Western culture, a thumbs-up is positive. In Eastern culture, it’s considered to be offensive and negative. That’s true not just with the emoji. That’s true if you do the hand signal in real life as well. If you’re traveling and you do the thumbs-up to your server at a restaurant, you might get thrown out. No emoji involved.

 

It’s unclear. There’s uniform confusion over what the cowboy hat means.

I think we established pre-call that we’re pretty close in age. Our generation doesn’t understand that cowboy hat emoji.

You mentioned the sexual predation and sexual harassment cases. Murder, I don’t think, is going to come up very often in an in-house environment. Let’s hope. I did have one of those once. Sexual harassment is on the offer all the time, especially following the #MeToo Movement. How have emojis emerged? Maybe we can talk about a particular case. You blogged about the Montefiore case, which caught my attention because it’s a health system case. In that case, text messages and the use of emojis were very significant. Can we talk about that one?

Overall, I track every case I can find that references the term emoji or its predecessor emoticons. I was over 225 last year. My total case count over the life of the project is now over a thousand. In most of those cases, somewhere around 90% of the cases, the emojis are not substantively analyzed by the court. They’re just referenced in recounting the evidence.

In many of the sexual harassment or workplace discrimination cases, there’s no analysis of the emojis and what they did. They were just part of the conversation that was taking place and often included offline conversations or online conversations about emojis. It’s just part of the evidence. Occasionally, in a case like the Montefiore case, the emojis get significant attention from the court. This is a good example of where that happens. If you want, I’m going to lay the facts out.

Please do your law professor thing.

Let’s talk about 18th-century England. The Montefiore case involves what we might have otherwise considered a standard #MeToo or sexual harassment type of case. We have a supervisor who allegedly was sexually harassing a subordinate. Standard fact. You deal with this, unfortunately, probably almost every day. As evidence of the alleged harassment, the subordinate said, “I have a chat log or a text message log of a conversation evidencing the harassment towards me.”

The subordinate introduced a screenshot of that log, and it included the heart eyes emoji. We’re going to talk about that. It is one of my favorites. It’s one of my top five most-used emojis. I love the heart eyes emoji. Because of its potential romantic connotations, it can also be the kind of emoji that could go from being a standard way of evidencing comfort with somebody to having romantic connotations. The subordinate introduces a screenshot of this text message log, including the heart eyes emoji. The defendant says, “We’d like to see the device on which that was created.” She said, “Sorry, not available.”

She has the chat string but no longer the phone.

Understanding Emoji Evolution And Its Impact On Legal Cases

She has a screenshot but mysteriously, the phone got lost. They said, “Tell us the device that it was created on.” She said, “I don’t know the exact number. It’s like an iPhone 5.” Let’s just call it that for a moment. They say, “Okay.” The heart eyes emoji on Apple has evolved over time. The differences between those depictions are not significant.

They look like a heart eyes emoji from the first time to the last time, but if you look closely, there are differences, like the heart eyes themselves got a little bit larger, the mouth got a little bit larger, and the relative position between the heart eyes and the mouth has changed. Very slight differences and changes, but there are differences.

The defense team retained an expert to help with the discovery piece of this, including work with the emojis. They said the heart eyes emoji depicted in this screenshot could not have been created on the device that she’s claiming she created it on. It would have only been created on a later device, maybe the one that she currently has to replace the one that has been lost.

Was it time significant because of when she alleges the harassment occurred?

No. The time is only significant because it shows that the screenshot she gave could not have been created on the device she claimed it was created on. There was no way to have that particular generation of heart eyes emojis on the device she claimed she was using. Because it had evolved over time, it was only possible to have been created on a device later in time.

The court saw the screenshot that was introduced and at the bottom, the court said, “This image is a fabrication.” When you see that from a court, it’s game over. There are serious problems that are going to attach to that. The lawsuit is dead. More likely, the question is whether the lawyer and/or the client will be subject to other disciplines, including possibly going to jail. You cannot fabricate evidence. When the court says, “This image is a fabrication,” bad consequences are going to follow.

What’s so interesting is I think about it like carbon dating when we try to establish the date of some artifacts that we find in the ground. By doing some carbon dating, we can say, “If the item has changed in this way, it must be this old.” What the defense team was able to do with the emoji is what I would call emoji dating. They were able to say, “This emoji could not have been done at the time she claimed the activity took place. Therefore, there’s something wrong with the timeline.”

There were other problems with her case. If that had been the only thing, it would have potentially got closer attention. In combination with some of the other irregularities in the case, it was clear that this was not a legitimate case. I do want to note it’s so awkward to talk about this case because we know most allegations of sexual harassment probably have some basis.

There’s maybe a kernel of truth.

In general, we tend to believe the people who allege sexual harassment. This was unfortunately one of the cases that was something different. In the end, it was a fraud on the court. It was an effort to try to manufacture a claim that didn’t exist. The emoji dating, like carbon dating, was able to help make it so obvious to the court and they had no choice but to take that final step.

Did the defense team have a specific expert who helped do the carbon dating of the heart eyes emoji?

They did. Although you wouldn’t necessarily need that. Once you know what you’re looking for, it becomes obvious how you would do it. Many general litigators wouldn’t have necessarily thought to treat the emojis as a piece of evidence requiring their own investigation. That’s where I think the consultants were quite helpful in steering the conversation saying, “Let’s try and find reasons why this evidence may not cohere.” The emojis gave them another vector to do so.

Tips For Discovery In Cases Involving Emojis

In your blog, you have some specific advice for doing discovery that involves emojis or text messages. Can we talk about that a little bit? One of your suggestions was to be aware that text messages come in pairs. It’s what the sender sent, which may be on a dated device or an Apple or Android or whatever, and what the recipient received, which might be on a different version or platform. That can make a difference.

It’s so mind-bending because we don’t run into this with most other types of electronic communication. If we type a word into our email, we expect that the word’s going to show up verbatim on the other side. It might be in a different font, but it’s still going to be the same word. When we use an emoji and send it over the internet, it doesn’t necessarily look the same as when we sent it. Each system, platform, service, or operating system can decide how they want to render an emoji. The heart eyes emoji will look like a heart eyes emoji across all the different systems, but the details will differ in some cases in material ways. That’s something that still in 2024, people don’t necessarily understand.

I think there’s no awareness of it.

In my world, this has been part of my ethos for a decade. You’re right. Even today, sophisticated people technology-wise still don’t realize that the emoji they see does not necessarily look like the emoji their sender or recipient is going to see. Once you understand that or once you realize that the emojis might look different between the sender and recipient, it opens up an entirely new set of inquiries because it might very well matter that the emojis look different. I give examples in my Emoji Law talks of how the emojis can differ so radically that someone would get a very different message, even if it’s the same symbol in the abstract. I’ll give you an example. There was a great study from several years ago where they used the grinning eyes, grinning mouth emoji.

What’s the grinning eyes emoji? Is that the one with the stars?

No. It’s the one with the peek eyes.

A wide smile?

Yes. Apple changed how it depicted the emoji from generation to generation. At one point, they asked a random panel of people what they thought that symbol meant. They said, “That person is ready to fight.” When Apple iterated the next iteration of it, they asked people, “What does that mean?” They said, “That person is blissfully happy.”

You can imagine someone sending from a new Apple device the blissfully happy emoji and it gets translated by Apple, with nobody doing anything wrong, not the sender or the recipient, into something that says, “This person is ready to fight me.” We’ve had a miscommunication or a misunderstanding that occurred between the sender and recipient, and nobody did anything wrong. From a litigation standpoint, this is easy expertise to bring to the table. All you need to know is you want to see both versions. Many e-discovery vendors are not equipped to do that.

Miscommunication is easy when an emoji looks different on another device. Imagine sending a happy face, but it arrives looking ready to fight! Share on X

The litigation counsel needs to make sure they ask for it.

They wouldn’t even think to ask, and the e-discovery vendor doesn’t make it easy. To do it properly, you have to have the right operating system at the time the message was sent or received.

That was a mind-blower to me that you could even do that part right of getting the sender and the recipient, but if you are looking at it on the wrong device or operating system, you’re not going to be able to recreate or see what they saw.

Once you know what you’re looking for, the protocol is pretty obvious, but you have to recognize what you’re looking for. You have to recreate the environment in which the emoji was presented and received. In 99% of emoji cases, that’s not going to matter. It’s entirely excusable for parties to say, “I’m not going to make those extra investments into the emojis because the chance of that making a difference is pretty small.”

Also in a murder case.

In a murder case, when there are no limits to what you’re going to do to try and resolve the case, then absolutely you investigate that. Even in the Montefiore case, what they were trying to do was this classic “He said, She said” situation. The supervisor said, “I never sent that message.” The woman says, “I have a screenshot.” Now what? By doing the extra investigation into that screenshot, that was worth the investment.

We’ll put a link to your blog post because I think it cracked the case open, that whole issue around whether the text message string was legit or fabricated.

There was nothing to discuss at that point. The only question was what the sanctions were going to be. It was so obvious that the message had been fabricated that the court didn’t hesitate. Those are good moments if you’re on the defense team when you have that smoking gun evidence that says, “I can bust this case wide open.”

Sexual harassment is the meat and potatoes of in-house practice. I know there were some cases you cited from outside of the U.S. I think there was a Canadian case and one in Israel. In the Israeli case, there was a string of emojis that concerned renting an apartment, and whether a contract had been created because someone had been very enthusiastic in their emoji string.

What we’re doing is riffing on how emojis are unique, special, and different. You started us off talking about slang, and I said it’s no different. It’s something that you need to be aware of, but that’s just standard for how we talk. We then talked about how emojis can look different between sender and recipient, something that is not true for many other kinds of communication. You send a photo, a video, or text, and those are all translated verbatim. Emojis don’t necessarily do that. That’s unique, special, and different.

Another thing that’s unique, special, and different about emojis is they lack grammar when they’re done in sequence. We don’t know whether or not to read the emoji string left to right, right to left, or as independent of each other or some other way of interpreting the total sequence. Without that standardized grammar, miscommunications or misunderstandings are quite common to emerge because someone might read it left to right, while the other person reads it right to left, and nobody is doing anything wrong because there’s no shared grammar on how to interpret it.

 

Unique Challenges Of Emojis In Communication

In the Israeli case, there was a string of emojis that didn’t make sense whether they were read left to right, right to left, or some other way. To be clear, this is a good example of our cultural biases. Here in the U.S., our standard default is to read left to right. In Israel, the standard is to read right to left. We immediately have to ask, “Are we reading it based on our standards or based on local standards?” It might make a difference. In this case, the emojis didn’t make any sense put together.

In particular, the one that stood out was there were six emojis. Some were celebratory in nature, like the champagne bottle, the dancing girls or the bunnies, and the Spanish woman dancer. There were also things that were less clear, like the comet emoji, which you could piece together some stories about why it was there. There are a lot of ways of interpreting the comet emoji. There was also the chipmunk emoji, and nobody could come up with any explanation for why it was there.

You can hypothesize random, arcane possible theories about what the chipmunk emoji might have meant, but it made no sense in context, no matter how you read it, left to right, right to left. The court was trying to say what this sequence meant, especially since some of these looked celebratory, Maybe this was a declaration of success and therefore a more binding commitment than an inquiry, and then you still had that chipmunk emoji hanging out there.

What is that? Is it common in Israel to use a chipmunk to mean something?

I did a lot of research into that chipmunk emoji because I was so curious about it. I asked a lot of people from Israel if they had a different unique meaning for this. The answer was no. Before the pandemic hit, in December 2019, I had the opportunity to go to Israel. I met with a husband who was the defendant with his wife in the case. His wife is the one who sent the message. I asked, “What does that chipmunk emoji mean?” He explained that it was not unusual for his wife to pick the most recent emojis in her emoji tray and include those as a burst of emoji enthusiasm. That’s not how I communicate. To me, that’s a weird way of putting things together, but that’s what she was doing.

The court got it right. The court said it was like a burst of enthusiasm, and therefore, it was possible for the recipient to take that as a symbol that this was more serious than just a standard initial inquiry. The chipmunk emoji was there because she worked in parks and recreation or some environmental stuff. She had the chipmunk emoji in her most recently used emojis. That’s why the chipmunk emoji showed up. You can see why, as an external party coming into this, and you’re trying to put these emojis into a sequence that made sense, we couldn’t do it. We don’t have a grammar that would have told us if we were doing it right or wrong.

I think there might be a generational issue because I might use 1 or 2 emojis in a text, but I can’t even imagine communicating in a string when I’m trying to communicate a larger idea or thought. Maybe it’s just me. Maybe I don’t do it.

The point is that people communicate in very different ways. We all have our own unique style of written and oral communication and other things like body language or vocal inflections. There’s no right or wrong, but there’s a shared grammar that helps us identify when people are following the grammar or when they’re deviating from it. It’s okay to deviate from the grammar. That usually makes an additional communicative point. Without a shared emoji grammar, we lack the infrastructure to process it.

You’re guessing.

From a litigation standpoint, the answer is quite obvious. Since it was indecipherable to someone external to the communication, you ask the parties. You ask the woman, “What did you mean by these six emojis in that sequence?” It might be that you decide that’s not a credible story, and then you can blow it up on cross-examination. The first inquiry is, “What did you mean by that emoji?” The answer to that question, in many cases, will take you to where you need to be.

The texting is the preferred communication of this era. I’m sure you get a lot of GIFs or memes. There are whole apps for generating memes and such. I see those. I don’t know if you’ve had cases involving those as well, but that feels like the next frontier in this imprecise communication.

I love talking about what’s unique, special, or different about emojis. We’ve identified a couple so far, the fact that they look different on different devices and the fact that there’s no shared grammar. GIFs and memes don’t have a lot of unique legal issues. They’re just either a photo or a video. They’re just like any other visual evidence. There’s nothing unique, special, or different about memes or GIFs that raise unique legal consequences. You treat them like you would a photo or a video.

I use them extensively. I like them a lot. Often, when I find the right one, they make a great point that has extra meaning because there’s usually a cultural context around the particular GIF or emoji. I’m a big Star Wars nerd, so I use a lot of Star Wars GIFs and memes because they’re so perfect. They not only add to the point, but they bring in all the baggage about Star Wars. They can introduce that into the conversation to make the point even stronger or richer.

I love using GIFs and memes. They’re an integral part of how I communicate online. From a legal standpoint, there’s not a lot that’s different about them. We are seeing cases involving them. Unfortunately, most of them are now showing up in some political context. What tends to happen is the most common one. You have a public servant posting GIFs or memes that undermine the credibility of the work they’re doing.

The most recent one I saw, for example, involved someone who worked in a prison system posting anti-Muslim messages in GIF and meme form. You can imagine that if there’s a Muslim population at that prison, those people might feel like they’re receiving discriminatory treatment. Nurses are another common source of friction here. Nurses will post something online that is inconsistent with how they would do their duties on the job. Even if they’re awesome employees in their jobs, the memes or GIFs might very well undermine our trustworthiness in them.

Every communication has the potential for misunderstanding—emojis included. But does that mean we should stop using them? Absolutely not. Share on X

That’s helpful.

I’d assume you have a social media policy that says if you’re posting things online that are going to make it impossible for you to do your job in a way that patients will respect, that’s a problem for us. That’s a disciplinary moment.

Practice Pointers For In-House Counsel On Emoji Use

That’s another good practice pointer. I was on Law Review, and I love footnotes. I had a lot of juicy nuggets out of there. One of the articles, which I did not read, suggested that in-house counsel should push to ban emojis in company communication. I thought that was somebody who had never worked in-house because I couldn’t think of a quicker way to get out the door as in-house counsel. The house of no does not work. What else do you recommend? Emojis are fun and a way to connect with people, but they can get us into trouble. Do you have any practice pointers for in-house counsel?

I’m sorry if it wasn’t clear to your audience, but I have to reinforce that the advice not to use emojis in the workplace did not come from me. I was citing articles where people made that point, especially among lawyers, because lawyers tend to be conservative and say, “There’s a potential for misunderstanding with emojis,” which is true, “Therefore, don’t use that,” to which I say there’s a potential for misunderstanding with every way you communicate. Stop communicating and that will be your best chance.

I don’t like the message saying don’t use emojis in the workplace, in part because it is a generational problem. That’s like saying to Millennials and especially to Gen Z, “Stop talking the way you normally talk. Your mode of communication doesn’t work.” That’s alienating. I think it’s potentially discriminatory. That’s bad news. As you said, the house of no doesn’t work.

Banning emojis in workplace communication isn't the solution. Instead, let's educate on how to use them thoughtfully and avoid potential pitfalls. Share on X

The question is how you can encourage people to make good communication choices. Some of it is pure education. It’s in my mind, like everything behind the DEI movement. Once we help people understand that there are different perspectives in the world, that the worldview you developed over the course of your life isn’t the only one, and that people are walking in very different situations and interpreting the way you communicate differently based on their context, it‘s obvious.

Emojis might have slang meanings. They might have different implications for different communities. You need to be thoughtful about that. That doesn’t mean don’t use them, but like any communication choice, you need to think about how it will be interpreted by the people you’re talking to. The broader the audience, the more likely it is that niche communities will have very different reactions to it.

Should there be some that are like, “Do not use?” For example, many companies have a civility policy, and you would maybe disciplined for going into a room and dropping F-bombs.

There are because I would be off limits if you’re that employer as well.

It’s frowned upon. For example, I’m aware that the eggplant emoji typically has a phallic connotation or the peach emoji. There are certain emojis that fall into an explicit category. You mentioned the sexual predation cases. I’m sure there are glossaries of risky ones.

I don’t use the eggplant emoji for anything other than penis. There’s a very limited number of times when it’s appropriate to use that particular emoji in the workplace. Although it could be used for completely innocuous purposes, like if you’re having eggplant parm as a meal. There are times when it would be appropriate, and yet I wouldn’t choose to use it because it has such a strong connotation.

Your mode of communication reflects your generation. Let’s not alienate others by banning their preferred way of expressing themselves—emojis included. Share on X

Things like the peach emoji, I don’t talk about peaches very often. Odds are if I’m talking about it, it’s probably about the connotation of “butt” rather than the actual fruit. Saying to categorically ban emojis strikes me as one step too far. If people understand that just as there are certain words they can use, don’t use those words because they’re so likely to be interpreted one way. Unless you’re using it for that purpose, which you probably shouldn’t be trying to achieve anyway, there’s no upside to it.

I think about racist words, and there’s a number in that category. There’s no time when those are appropriate. Don’t use them. Even if you can find a reason why it’s appropriate in a presentation or you’re quoting evidence from somebody else, don’t do it. I wouldn’t limit this to emojis though. There are certain things that have taken on such a strong connotation in our society that there’s no good circumstance where you would use them.

You’ve been a law professor for many years and have developed an exciting rich niche. Way back, you were also a general counsel. I wonder if you could talk a little about that role. With that lens, share any advice you may have for in-house counsel on how they should view and approach emojis.

I worked as a lawyer at an outside law firm for a number of years before I got the opportunity to become general counsel at a small internet company. This was during the first halcyon days of the internet, back in the dot-com boom. I left at the peak. Just a month after I left, we saw the dot-com bust.

Well-timed.

I was one of the people who lost the most money on an internet company investment because my stock ended up being negative. My experience was colored twofold. I was dismantling the company to try and save it, which isn’t fun for a GC. That’s not why you become a GC, dismantle a company. It’s to build something. I had no support. I had no cavalry coming over the hill to rescue me. It was just me. I had an intern for a while. Otherwise, it was a one-person shop.

That was hard. It’s not something I would recommend for most folks because, as general counsel, we’re expected to be generalists. The range of diversity in the questions that arise is so broad, so unlimited. If there’s no one else on the team, and I kept my outside counsel budget to $3,000 a quarter, which even years ago was a very small number, it was all on my shoulders. I found that stressful. I slept worse as inside counsel than I did as outside counsel.

When I was outside counsel, it was easy. I’d give my brilliant sage advice and then toss it over the wall, like, “Do what you will with this. It wasn’t my problem anymore. I’d given you great guidance, and you’d do whatever you chose.” When I was inside counsel, it was my problem. Everything was my problem, from the biggest structural issues to the smallest details. They were all my problems, and there was nobody else to help with them. My lessons are colored by the unique attributes of my position, which probably vary widely from yours.

I think the most important thing, and this is said over and over, is that as inside counsel, your job is to help your client achieve the best possible outcomes. That doesn’t mean the best possible legal outcomes, it means the best possible outcomes. The most valuable skill I brought to the table, and I don’t know if my client would agree because I’m self-characterizing it, was to go through options analysis and say, “Here’s the range of options that we have. Some of these are based on legal analysis, some are based on business moves we might make.”

When I teach my Internet Law class, I always talk about what the opponent is going to do as a counter-move. If you think they’re going to make a counter-move that’s only in the legal sphere, that’s incomplete. They’re going to make countermoves in a variety of ways. Thinking along those lines, what are the counter moves, and what are the business implications of each of the moves and counter moves people are likely to make?

What happens when you run into someone who isn’t going to play ball the way you want them to play, but they are going to playball based on irrational criteria? Those are all part of the options analysis. I think that’s where a lot of inside counsels can add the most value, by working through those options analysis and bringing options to the table, not just shooting down the options that someone else brought.

Don’t be a house of no, and don’t be overly critical.

The way we teach it in law school is it’s always yes-and and not a no.

Closing Thoughts And Final Question On Pump-Up Songs

I said that yesterday to somebody. This has been interesting. I can see why you’ve gone deep into the world of emojis. I’ll follow your blog and see what the case count is next year. I close all episodes with the same final question. I know you’re a Star Wars fan, but I hope you also like music. I ask all guests, what is your pump-up song?

I saw that question and it threw me for a loop because it’s impossible to come up with a single song. Perhaps if I were, I might be some Star Wars thematic music. We’re doing a rewatch of Star Wars: A New Hope and the music in that is awesome. Let’s pick one of those. I do maintain a Spotify list where I have my top 130 songs, and any one of those could be on my pump-up list. I also have a Spotify emoji song list, although I warn anyone who wants to investigate it that it’s filled with the most profane and offensive songs possible. I didn’t filter it based on quality. I filtered it based on topicality. There are a lot of hip-hop songs that are gross.

The emoji is in the title?

There’s some emoji reference that was enough that I could find it. I put all those songs together. It’s a playlist on Spotify. You can check it out, but be warned. I do not condone it.

Not safe for work.

It is not. There are a lot of offensive songs. If you’re looking for an emoji-related pump-up song, I have a place to go.

We’ll go there.

Listen with asbestos gloves or headphones. If you want to see my top 130 songs on Spotify and pick one of those as your pump-up song, that would do it. I don’t know how people can answer with a single song. That’s such a hard thing to do.

We stumped the professor.

No. The professor gave 130 answers to a single question, which is quite on-brand.

Thanks, Eric. This has been a great conversation. Thanks for being in the Legal Department.

Thanks for having me.

 

Important Links

• Eric Goldman – LinkedIn
• https://Blog.ericgoldman.org/archives/category/emojis
• https://Open.spotify.com/playlist/7x1DuSo7l5fzGsjSteBgxr?si=0654ca2f21f542b7

 

About Eric Goldman

Eric Goldman is a Professor of Law at Santa Clara University School of Law in the Silicon Valley. He also co-directs the High Tech Law Institute and supervises the Privacy Law Certificate. He joined the Santa Clara Law faculty in 2006.

His research and teaching focuses on Internet, IP and advertising law topics, and he blogs on these topics at the Technology & Marketing Law Blog [http://blog.ericgoldman.org]. Managing IP magazine has twice named him to a shortlist of North American “IP Thought Leaders,” and he has been named an “IP Vanguard” by the California State Bar’s IP Section.

Before joining the Santa Clara Law faculty, he was an assistant professor at Marquette University Law School in Milwaukee, Wisconsin. Before that, he practiced law for eight years in the Silicon Valley as General Counsel of Epinions.com and an Internet and technology transactions attorney at Cooley Godward LLP.

Eric received his BA, summa cum laude and Phi Beta Kappa, in Economics/Business from UCLA in 1988. He received his JD from UCLA in 1994, where he was a member of the UCLA Law Review, and concurrently received his MBA from the Anderson School at UCLA.