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Is it Time to Reconsider Emoticons? The Case for the Legal Smiley

by Ryan Anderson

on 26 February, 2015

Those frivolous little smiley faces have been on some serious minds. One group of these thinkers is composed of business professionals strategizing to wipe that smile off our screens.

Communications professor Bill Lancaster bemoans that emoticons are one more sign of the general “degradation of writing skills.” Professional writers are particularly peeved, reports the New York Times. British journalist Maria McErlane states she’s “deeply offended” by emoticons. “If anybody on Facebook sends me a message with a little smiley-frowny face or a little sunshine with glasses on them, I will de-friend them. I also de-friend for OMG and LOL. They get no second chance. I find it lazy. Are your words not enough? To use a little picture with sunglasses on it to let you know how you’re feeling is beyond ridiculous.”

If anybody on Facebook sends me a message with a little smiley-frowny face or a little sunshine with glasses on them, I will de-friend them.

But the snootiest grammarian would be hard-pressed to be more dour about emoticons than attorneys are. An article in The Young Lawyer on best practices for email sets it out unequivocally: “‘TTYL’ may be fine for texting your teenage daughter or your ‘BFF,’ and the little smiley-face is cute, but you wouldn’t use them in a client letter, office memo, or settlement proposal, so don’t use them in your e-mails.” If younger readers find this tone a little sneering, that’s because they’re accustomed to seeing strongly-worded statements end with a reassuring :).

Don G. Lents, chairman of the international law firm Bryan Cave, warns young lawyers: “If you’re depending on a smiley face to communicate a thought to a client or a distant colleague, you should probably step away from the keyboard, get on a plane and communicate in person.” Legal Studies scholar Robert E. Mongue heartily concurs. He admonishes students training to be paralegals never to use emoticons — even if a smiley here or there doesn’t get you into trouble immediately, in a malpractice suit, he warns, it could be seen as evidence of unprofessionalism.

Smiley Strikes Back

So it’s an open and shut case: the yellow smiley is found guilty of disturbing the professional peace and exiled from the office.

But doesn’t this seem to be following a familiar pattern? With every LOL, a grammarian shudders — but thusly they shuddered whenever someone said “it’s me” instead of “it is I.” Eventually, if you’re trying to connect through communication, rather than give a message of perceived self-superiority, you put aside the ‘rules’ and adapt to popular usage.

And might emoticons be one more case where the kids introduce some new-fangled thing, some atrocity of good breeding — like, say, jazz, or Facebook — which the older generation protests or condescendingly sneers until it’s finally accepted as an appropriate adult interest or activity? (Though, admittedly, that sometimes requires that those pioneering kids grow into new adults, scolding whatever the next generation is brewing).

if you’re trying to connect through communication, rather than give a message of perceived self-superiority, you put aside the ‘rules’ and adapt to popular usage.

Attorneys are a particularly conservative bunch, slow to adapt to online tools that have already grown into respectability, such as social media, blogs, podcasts, and online videos. This is even true for personal injury attorneys, who tend to be the least stodgy and most innovative of the bunch.

But admittedly, some things never make the cut into adult acceptability. We may never see elderly gents in the park playing pogs or Pokemon cards (pogs are still a thing, right?). So where do emoticons fall? Are they a silly fad of kid culture or the future in embryo?

Serious, rule-bound attorneys: take a deep breath, because there are scientifically-grounded reasons to believe Smiley’s here to stay.

Cracking the Smile: the science behind the emotional icon

The other big-brained troupe thinking seriously about emoticons are neuroscientists. Last year, Dr. Owen Churches and his colleagues published their findings in the journal Social Neuroscience: when we encounter the smiley emoticon our occipitotemporal cortex lights up like we’re seeing a human face.

This new neural pattern also seems to be developing rapidly, with drastic differences in findings that are only a few years apart. Thirty years ago, none of us would have used our occipitotemporal cortex to decipher 🙂 — but now, more and more of us have brains trained to see a colon-parentheses as an emotional message. This effect has been found to be even more pronounced with emoji, the more graphic, pixelated faces supported by a variety of IM platforms.

Discussing the team’s findings with journalists, Churches calls emoticons “a new form of language that we’re producing,” which requires “a new pattern of brain activity” to decode. He points out that this is “an entirely culturally-created neural response. It’s really quite amazing.”

One reason this should amaze us, Churches explains, is that we respond differently to faces than we do to everything else in our environment. They grab our attention on a cognitive level unreachable by words alone, or by images of other objects. Anthropologist Krystal D’Costa, blogging for Scientific American, explains that our brain fixates on faces because we are social animals who display our emotional cues there.

The upshot of this finding is big news. It turns out that even if we think it’s beneath our dignity, a certain configuration of punctuation could be having a powerful, subconscious emotional effect on us.

Can you mimic punctuation?

We pay attention to faces because we want to be able to predict someone’s behavior (we need to know if someone is about to hug us or hit us). But in addiction, faces play a role in social connection through automatic social mimicry. We are inclined to repeat the facial expressions we see. So if we’re subconsciously responding to emoticons as faces, then no matter how superior we may feel to their use, we’ll feel a little tug on the corners of our own mouths each time we see them. Research validates that this is already happening.

This might explain why emoticons have been found to have a powerful positive effect. Customer service professionals with UserVoice have found that using emoticons in their text interactions for customer support tickets generates 84.6% more positive responses. They conclude:

“Some people think emoticons are stupid or unprofessional, but the fact of the matter is: nobody will get mad if you use one…but plenty of people may get mad if they think you’re being cranky with them (when you’re really not). We’re just fine overusing emoticons if it makes our communication clearer and users happier.”

In research presented to the International Communication Association, scholar Yoo Jina finds that emoticons in professional settings tend to make the recipients like the sender more, feel that the sender likes them more, and fosters a greater sense of similarity with the sender. Further, the credibility of the sender wasn’t affected. She concludes:

“In a task-oriented context, where impersonal, cold, and unsociable features of computer-mediated communication are strongly encouraged in order to build credibility or professionalism, using emoticons in e-mail might create a positive expectancy violation by being friendly, emotional, and personal.”

The subconscious likeability of emoticons may be why research out of Cambridge shows that people who use them on social media have, on average, more social power than others.

Taking off the negative edge

Management scholars have explored how email in work settings carries a ‘negativity bias.’ Emails that were intended as positive are read as emotionally neutral, neutral emails are read as negative, and negative emails are read as manifestos of war. As a greater chunk of our communication takes place through this medium, we seem on track for a descending spiral of negativity.

Emoticons may be one way to stop this downward slide. Research from Florida Institute of Technology put business professionals in fictional workplace scenarios where they received messages with and without emoticons. For example:

I can’t make the meeting you scheduled because it conflicts with my staff meeting. Email me and let me know what I missed.

vs.

I can’t make the meeting you scheduled because it conflicts with my staff meeting. Email me and let me know what I missed. 🙂

They smiley face was found to counteract the negativity bias, and respondents thought the imaginary sender to be more friendly. However, they also found that person to be less professional, suggesting that at least in some contexts there is a need to balance the two perceptions.

One particular place where the balance should be tipped toward friendliness is when providing negative feedback over email or text. In research published in the Journal of the Association for Information Systems last August, employees were found to feel more positive about specific negative feedback when it was coupled with the smiley — and they were also more likely to improve their performance.

Adding depth: communicating face to, um, “face”

A recurring literary complaint about emoticons is that they’re “shallow.” “To me, it’s like bad moviemaking,” one professional told the New York Times. “As soon as Dad grabs the puppy, the shot immediately goes to Junior’s teary face — like the director does not trust the audience to have an appropriately developed emotion by itself.”

She concludes with this revised ending of The Great Gatsby:

But when we’re not writing the Great American Novel, we might do well not to “trust the audience” completely to respond with the appropriate emotion. Research has shown that we consistently overestimate our ability to communicate by email. Those who write with complete confidence that their words are sufficient are often sadly wrong, as the rash of internet flame wars can attest.

In this state, the emoticon might actually add depth to the communication. It’s disorienting to shed the contextual clues of faces and voices in our communication — and it seems we naturally reach for something to fill the gap. Maybe they’re too simple to really be the “new body language” — but emoticons might be a bit like a new question mark. Linguist Ben Zimmer explains “It’s a recurrence of a very old impulse. [. . .] I don’t see it as a threat to written language, but as an enrichment. The punctuation that we use to express emotion is rather limited. We’ve got the question mark and the exclamation point, which don’t get you very far if you want to express things like sarcasm or irony in written form.”

Explaining the popularity of emoticons, D’Costa points to some anthropological constants: “As social beings, we require consistent and frequent confirmation of our social placement. This confirmation is vital to the preservation of our networks—we need to be able to gauge the state of our relationships with others.” Digitally-mediated communication often doesn’t do this, which, D’Costa believes, is it’s greatest failing.

So maybe the reason we don’t want The Great Gatsby to end with a frowny is that Fitzgerald isn’t our boss or our father-in-law. It doesn’t really matter to us how he’s feeling — that’s not why we read the book. If he were our boss, and he sent us that line in a text message, we’d likely feel some anxiety until we had determined his state of mind. D’Costa explains:

“Emoticons impart a bit of the user’s personality to the digital exchange–actually making it a conversation by employing differing intonations. These types of nuances are of importance because it allows relationships to be maintained over digital media.”

This might be why it would obviously be inappropriate to use in a legal brief or motion. That isn’t a conversation, and your emotions as you wrote the thing aren’t relevant. In some messages to clients or other members of the office, however, on the other hand, your emotional state could be just as important as the words themselves.

In that case, as long as emoticons solve more social problems than they cause, their spread will be inevitable. D’Costa finds that at an anthropological level, “emoticons are being used to connect people—to help people understand each other through methods that limit shared information inherent to social biofeedback.”

The smiley is kid-tested — but is it adult-approved?

The New York Times announced in 2011: “the emoticon has rather suddenly migrated from the e-mails and texts of teenagers (and perhaps the more frothy adults) to the correspondence of business people who pride themselves on their gravitas.”

The experts’ best guess is that at least the most simple and sober of emoticons will continue to penetrate the adult world, as the generation that unthinkingly uses them grows up and takes over the world’s corner offices. But is it safe yet for attorneys to use them in their emails and texts?

We conducted a brief survey of attorneys we knew, and found, as expected, that the majority felt that emoticons had no place in a law office. One-third of respondents, however, felt that they should be used in some forms of attorney communication. Based on other research, we could expect this third to have a younger average age than the emoticon nay-sayers.

These numbers suggest there’s still a chilly reception for pioneer emoticon-users in the legal field. Though we expect this to change over time, it means there are some things to consider if you want to incorporate the benefits of emoticons in your law practice:

  1. Exercise restraint with your elders, and feel freer to use them with younger people.
  2. One good place to begin trying out emoticons in the office is with those who are equal to or lower than you in the office hierarchy — especially if you are their direct supervisor, and you are giving them feedback about their work.
  3. Use them in situations where rushed, terse answers might give the recipient of your message the false idea that you’re angry.
  4. Unless you have a shared understanding, stick to the most common emoticons, like the smiley, to avoid other misreadings (that “big hug” emoticon might not translate well).
  5. Don’t lie with the smiley — it will be read as passive-aggression. Nobody wants to see: “Guess I’ll just clean up your mess again :-)”

In situations where you can establish an emoticon rapport with clients and colleagues, indulge a little in the smiles and thumbs-up. You’ll find that the increased emotional connection will improve your day — and bring a little smile to others as well.