Social media has become a part of our everyday lives. Most people have constant access to the internet, and when they aren't updating their location or status, or sharing their own opinion, they are reading what others have to say. It's a constant hum of posts and status updates.
Because of this, it shouldn't come as a surprise that social media has affected the legal industry. From everyday divorce cases to multi-million dollar lawsuits, social media can pose issues throughout the litigation process.
Of course, like most things, there are negatives and positives when it comes to social media and litigation. But for all the headaches social media has caused attorneys, there's also a collection of positive benefits that have come from the rise of social media.
Social media has quickly become one of the primary methods by which lawyers gather evidence and build cases because it's such a valuable minefield of information.
Far too many people overshare on social media. People willingly tell the world what they're doing, where they are and how they feel on a constant basis, creating a treasure trove of information that can be used in court. Lawyers regularly run social media searches of their own clients and of other people involved in a case. The use of social media by attorneys is now so pervasive, many believe it's only a matter of time before not using it will result in accusations of malpractice.
Is There a Line?
Courts accept information gleaned from social media posts, taking the stance that anyone posting on social media has no reasonable expectation of privacy. But how far can attorneys go when it comes to gathering information?
It might be acceptable to read social media posts that are public, but can an attorney “friend” someone in order to gain access to information that is shared only with someone's inner social media circle? And should clients expect to be warned by their attorneys about using social media with care?
An increasing number of attorneys have added discussions about social media, as well as reviews of clients' existing social media accounts, as part of their early case review. These discussions might include topics such as:
- Accepting new friends or followers
- Setting accounts to private
- Deleting posts
- Changing passwords
- Posting pictures
- “Checking in” or using other location-oriented services
- Allowing friends, families or others to tag, share or post information about the client
Some people might see this as overkill, especially if the claim they have filed is legit. However, just as you wouldn't speak to a police officer investigating a crime without an attorney present, you shouldn't share to social media without considering the ramifications of how your words can be used against you. If you are involved in any type of legal dispute, it might be better to abstain from social media use, or at least use an extra dose of common sense when it comes to posting.
Social Media Evidence
As you might expect, there are concerns about how evidence gathered from social media sources can be used in litigation. For instance, is a social media post really even proof someone was at a location or engaged in a particular activity? It's no secret the internet is filled with deception and social media is no exception.
Regardless what information is gathered from social media, the rules of evidence apply and evidence must be backed with proof. Exactly how this will work is still up for debate though. As social media evolves, so will the law. In the meantime, both lawyers and clients need to post with care.
Impact on Juries
Already, social media has caused problems for jurors. Social media platforms open the door for inappropriate contact between jurors, attorneys, judges, witnesses and more. New York State even went as far as making restricting attorneys and jurors from communicating on social media, including something as simple as friending the person on Facebook. And nowadays, most judges include a comment about social media when cautioning jurors to not discuss an in-progress case with anyone. Unfortunately, jurors commonly disobey these guidelines.
Technological innovations have always presented challenges – and opportunities – in litigation. Over time social media and all it has to offer will be integrated into litigation and the judicial system will adapt, only to encounter whatever new challenges are on the horizon.