It’s becoming a common story. The rise of social media has created a dramatic expansion of the playing field for both the collection of evidence and its presentation to jurors as well as new issues for judges to grapple with regarding admissibility of a growing sea of personal information flowing freely across the internet. In both the civil and criminal worlds, self-inflicted wounds by clients are becoming commonplace, and a single critical post can make or break a million-dollar matter or decide if someone goes home or to a jail cell.
Even after an incident, there can be problems with a party’s public statements and how they might affect the outcome in a courtroom. With people addicted to constant sharing of every thought and feeling, can attorneys keep clients from musing online about the case?
‘It is out there’
Alan S. Mandel of St. Louis’s Mandel, Mandel, Marsh, Sudekum, Sanger, puts it directly.
“In the proper circumstance, Facebook or social media posts could be devastating to a case,” he said.
Mandel noted that he always cautions clients to avoid posts about a matter and he is also careful to ensure that staff surf through social media messages to look for anything that might create a problematic surprise. In civil cases involving personal injury or workers compensation matters, Mandel said it can be devastating to show an allegedly injured person in engaged in strenuous recreational activities or simply leading an active, happy lifestyle.
Still, he feels social media can also have the opposite effect. In one recent personal injury matter, he recalled the defense introducing photos from his client’s wife’s social media page and then watching as jurors shook their head disapprovingly.
“It totally backfired,” he said. “I think if you are going to use social media posts to try to impeach a witness…it better work. It better be good because juries don’t like the invasion of privacy.”
But when it is effective, it can make a big difference. Mandel compares social media material to a “cheap form of surveillance”, a sort of digital outgrowth of the kind of research that insurance companies have long employed private investigators to conduct.
“But now, you don’t really have to pay for it,” he said. “It is out there.”
Vet but don’t tamper
Richard Schnake of Neale & Newman handles intellectual property cases and appeals. He noted that unauthorized copying and use of logos can be an issue in IP with social media’s growing prevalence. Even song lyrics or a poem could infringe someone’s copyright, though he notes that such matters probably mostly go unenforced.
“The damages aren’t going to be enough to justify filing a copyright lawsuit, so you don’t see that very much,” he said.
But the types of matters that could be affected by social media are limitless. Indiscreet photos could change the course of a divorce or certain messages might impact a contract case. Even leaving reviews for a business online could prompt a defamation action.
“If they are not true, you can go file a lawsuit, and I’ve seen those things happen,” Schnake said.
And there can be a lot of material to go through. Landon Miller of the Faber Law Firm said that there is such a wealth of opportunities and pitfalls for legal cases that it can be difficult just to find the time to digest it all, especially when clients may have multiple accounts under multiple usernames.
“You could probably create a position in a law firm just for vetting your clients’ social media,” he said.
But businesses need to resist the temptation to vet themselves and then attempt to rewrite history by expunging posts relevant to the case. Tampering with or destroying evidence is a serious matter.
“You let them know that, ‘Sorry, I know you probably want to go delete this now but you can’t,’” Miller said.