Social Networking Becoming the 800 Pound Gorilla for Litigators
Are you a litigation attorney? Are you on Facebook and/or Myspace? Do you even know what they are? You better. Use of social networking web sites such as Facebook and MySpace is now so common that issues related to these sites must be considered throughout the litigation process.
Wikipedia describes Facebook as:
Facebook is a social networking web site that is operated and privately owned by Facebook, Inc. Users can add friends and send them messages, and update their personal profiles to notify friends about themselves. Additionally, users can join networks organized by city, workplace, school, and region.
Myspace is another social networking site that is less popular than Facebook, but still a major player in social networking.
It is now common for lawyers to perform Facebook and Myspace research on the opposing party and witnesses in a case to look for evidence that can be used against the person. It is so pervasive, that lawyers should be looking at the social networking pages of their own clients in order to see what is there and to be prepared to deal with it.
There are other potential social networking issues that can arise in connection with trial. In Florida, judges and lawyers cannot be Facebook friends because “online ‘friendships’ could create the impression that lawyers are in a special position to influence their judge friends.”
I have talked with lawyers who are worried about a juror going home and researching parties on social network sites. What if a juror does that and discovers that the juror has a mutual friend with the party or belongs to the same club or religious group? Could that impact the juror’s decision in the case?
The same goes for lawyers researching potential jurors before a jury is put in the box. Social network sites can provide a wealth of information on how a person views life.
Within a couple of years I expect these issues to be so prevalent that social network sites are addressed by the Court and parties in voir dire. It would not surprise me if Courts instructed jurors to restrict their use of these sites during trial to make sure that the juror did not discover a personal connection to a party not known during voir dire.
How would you like to spend a week trying a complicated expert-intensive case, only to have a mistrial declared because a juror discovers a connection with a party on Facebook? Or the lawyers for a party discover the connection and ask for a mistrial deep into the trial? That would suck.
I am not aware of a mistrial due to social networking issues that arose during a trial. But I will be shocked if it has not happened or does not happen soon.
Litigators must be savvy of these issues, regardless of their personal feelings about social networking sites. Old timers who pride themselves on being Internet ignorant better educate themselves on these issues, or they risk making a client unhappy when they do not spot a problem on the horizon.
Litigation departments in big firms would be smart to have mandatory in-house CLE’s to educate the firm’s lawyers on these issues. You can ignore the 800 pound gorilla that is social media, but you do so at your own peril.
I continue to be amazed at the stupidity people post on their facebook sites. It's almost always younger people. There is a well-known DUI cop in Ridgeland who has 100 pics posted of himself drinking like a fish right next to his pictures from winning the MADD award of the year for giving the most DUIs. He's constantly posting about "partying and drinking". He's an idiot.
I would suggest keeping your social sites private and not putting information on there you wouldn't want everyone in the world to see.