Social Media and the Trial Attorney

The Wanted or Unwanted Role Social Media and other Technological Advances Are Playing in the Trial Attorney’s World in Arizona

Social media has resulted in a good deal of personal information exchange through social network sites.  Facebook, Instagram, Twitter, Snapchat, etc.- they are all fun and widely used by a large portion of our society.  In their best mode, they permit terrific communication possibilities. Likewise, internet websites also contain a great deal of information which may or not be helpful to litigants.  Attorneys and investigators in personal injury, medical malpractice, and business litigation cases are quick to look for the opposing parties’ vulnerabilities and weakness exposed through their social media and internet postings.  In their worst mode, they can present very damaging problems for unexpecting and unknowing litigants.  Members of our firm have seen very good legal cases destroyed or partly crippled by social media.  It is becoming all the more common for insurance companies’ representatives and investigators and defense attorneys to explore and investigate claimants’ social media accounts and internet websites in connection with their injury or other claims to seek to do what they can to embarrass or discredit or diminish their claims or demonstrate that these claims are not real or are highly exaggerated.  Insurance companies and their attorneys also seek to get information which may be damaging through other ESI sources and devices such as computers, cell phones, and hard drives.

Good Rules to Follow for Social Media

Good rules to follow if you are involved in litigation or anticipate litigation and regularly use social media, computers, cell phones and other devices with hard drives:

• Be aware of “friends’ Tell your clients to create “friend lists” so that only certain friends can see their photo albums and status updates. Remove any “friends” that you do not know well or at all, and accept friend requests only from people you trust.
• Take down photos. After archiving current content, you may wish to remove and un-tag all photos of yourselves that are not simple headshots.
• Don’t send messages or information about your case. Do not send emails, text messages, or post social media messages about your claim, health or activities to anyone except your lawyers.  Careless communication can destroy your case.
• Turn on the highest privacy settings. If you won’t stop using social media, set privacy setting up to the highest level.  Make sure only friends can see your information, rather than friends of friends of the general public.  Test out what they can see by using the “view as’ feature as a useful tool
• De-activate or stop using social media accounts. Consider de-activating your Facebook profile and other social media accounts.  If de-activation is impossible, after archiving remove any information that could touch upon your injury or activities and avoid future posts.
• Archive the content of current accounts. Destruction of potential evidence may create bigger problems than the information itself.  Preserve the current content of any social media accounts.  If you don’t know how to archive, check with our office and we will assist you.
• Be cautious. You, as our client, should assume that anything you write on your social media accounts, including status updates, messages, and wall postings, will at some point be seen by defense lawyers, judges, and juries.
• Preserve all computers, tablets and cell phones which you own if you decide to obtain replacements.
• If you deliberately destroy electronic communications devices, opposing counsel will try to portray you as deliberately destroying evidence You don’t want the judge instructing the jury that it may assume the contents of the discarded or destroyed device would have been unfavorable.
• Don’t join websites or web chat groups. They don’t own the information they post online and info they post is highly searchable. You should not enter information on dating or insurance sites, post on message boards, participating in or comment on social media, nor communicate with private groups or blogs or use chat rooms.

January 2016 issue of Trial magazine by Ken Whigley and Michael Wilensky, page 44

New Challenges for Good Trial Attorneys

New challenges for good trial attorneys to adjust to and learn how to put technological advances to optimal use in advancing the interests of their clients:

• Expertise in social media also raises the bar for trial attorneys because they must have a working knowledge in this technology and can no longer sidestep technological advances
• This new challenge was recognized by The American Bar Association Model Rule 1.1: Competence, Comment 8 was Amended to state:
• To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing education requirements in which the law is subject
• 15 states have already adopted attorney technology competence rules

Another way of summarizing the issue states:  “Attorney failure to keep up with technological advances  can be “career suicide”, according to US Magistrate Judge James C. Francis

• The challenge is significant for trial attorneys because of these issues:
• Traditional Discovery has given way to a large extent to E-Discovery
• E-discovery makes things much more complex
• In this current world of litigation, there is a tremendous amount of data generated
• Determining how and where it is electronically stored is a challenge in its own right
• E data is not always static and not always visible
• Much of ELS contains Metadata which in some cases must also be evaluated
• Spoliation (evidence destruction) is also all the more prevalent and methods of detection are essential. Just because evidence appears to have been deleted does not necessarily mean it is gone.

Our attorneys take pride in reviewing and properly advancing the causes of our clients.  Developing strong expertise in social media and other technological advances has become a big part of the presentation and success in trial advocacy. Please call us to discuss your case and we will be happy to help you.  Our contact number is 602 265-2600 or you may email us at billblack@billblacklaw.com