In our ever-growing world of social media and email, people with litigation pending against them, or those who have brought lawsuits against others, must learn to use e-mail, Facebook, Twitter, Instagram, Snapchat and other social media platforms wisely. On the flip side, attorneys must be vigilant in advising clients on the appropriate use and preservation of electronic correspondence and social media posts. Since the rules of evidence apply to social media just like other types of documentary evidence, it is important to know how social media can be used to bolster your case some of the most effective ways to use it in litigation, and some pitfalls.
How Social Media Can Bolster Your Case
During the jury selection process: A simple “Google” search can yield information on potential jurors that might be helpful to your case. For example, has a potential juror previously been a litigant in the same type of case you are bringing?
During trial, after selecting your jury: While many courts still ban live internet research during jury selection, post-selection internet research on jurors who were accepted onto the panel could help inform and refine trial strategy. For example, has a juror blogged about and taken a position on the central issue in your case?
During mediation in civil cases or plea negotiations in criminal cases: As you can imagine, effective social media research on the opposing party in a civil case or a complaining witness in a criminal case is an advantage to the party conducting such research. For example, has the plaintiff in your case, who has claimed a permanent, debilitating back injury, posted pictures on Facebook showing her playing beach volleyball?
Effective Ways to Use Social Media
Just Do It (Search!): Over a billion people worldwide now use some form of social media and over a hundred million people in the U.S. use social media. Millions of Facebook, Twitter, and Instagram users have no privacy settings on their page. As a result, social media searches often yield fruitful results.
For example, even where an adversary’s social media posts are private, discovering public posts on a page belonging to an associate of the adversary that shows the adversary may be exaggerating or outright lying about their version of the facts of their injury can yield helpful results. Such a post could support a motion to force the adversary to unlock their social media posts and produce them in discovery.
Conducting basic social media searches in most cases is now the rule for attorneys, not the exception. Social media contains a treasure trove of information and insight into the lives of litigants, complete with photos, audio, and video, all of which could help bolster, or sink, your case.
A Special Note Regarding Live Streaming: Many social media sites now allow you to stream live content. Live streaming can capture the immediate aftermath of events and the demeanor of parties and witnesses to an event. Live video of the aftermath of an event is especially effective as it puts the judge and jury at the scene of the incident while the events are playing out.
Pitfalls to Avoid in Using Social Media Evidence
Only Authorized User Permitted: Are you authorized to access the social media evidence you seek to use to bolster your case? Use of an employer’s computer system to access and publish an adversary’s social media posts is fraught with its own problems, more specifically outlined in each employer’s information technology policy. More importantly, the unauthorized access of a social media account likely violates both Federal and Local harassment laws.
Beware of Deep Throat: If you have to tell your attorney “I can’t tell you where or how I got this information…” that’s a pretty good indication that you are in possession of unauthorized social media content. Make sure any information you provide to your attorney is publicly available – otherwise, you run the risk of violating privacy laws. Your attorney is not likely to move forward with the social media evidence where she or he does not know the origin.
Don’t Get Caught in Your Own Snare: You should assume the opposing party in your case has access to all of your social media posts. This is true even if your account settings are set to ‘Private.’ Avoid discussing your case on social media at all costs as this could have adverse effects on your case.
Recently, social media evidence has had a significant impact on litigation and how litigants and attorneys approach cases. Its impact is only likely to increase in the years to come. The attorney you hire should be on the cutting edge of these new and exciting litigation tools in order to further, and protect, your interests.
Darrell Chambers is the Founder of the Chambers Firm, LLC, handling wills & estates, small business consultation, employment law, criminal defense, and contract matters in DC and Maryland. Darrell resides in Ward 4 and the Firm is focused on bringing quality, affordable legal services to the residents of Ward 4. Darrell’s DC office is located on Capitol Hill and his Maryland office in Silver Spring, however, Darrell regularly meets with clients in Brightwood, Shephard Park, Takoma, Petworth and the surrounding Ward 4 neighborhoods. Darrell can be reached at www.chambersfirmdcmd.com or firstname.lastname@example.org.
This blog is for information purposes only, is not intended as full and complete legal advice on any topic, and does not create an attorney-client relationship between the reader or any other person or entity and The Chambers Firm, LLC.