A client was involved in an ongoing dispute with his
neighbor. The neighbor dumped trash into the client’s yard on a number of occasions
and verbally harassed the client. The abusive neighbor also injured the
client’s dog, resulting in large vet bills. The client decided to sue the
neighbor.
To win the case, the attorney needed to show the
jury that the neighbor had a history of harassing the client with vulgar language
and threats. But when the defendant neighbor took the stand, he testified it
was not in his character to use crude and profane language. That is when the
attorney pulled up the neighbor’s Facebook page. The attorney had photocopied the
neighbor’s Facebook wall, where he had posted many derogatory and offensive comments.
The jury ended up awarding the plaintiff more than
$430,000 in damages. Speaking to the jury after the trial, the attorney
discovered the Facebook wall postings were a key factor in diminishing the
defendant’s credibility.
This case illustrates how social media, like
Facebook and Twitter, are changing the legal landscape for defendants and
plaintiffs alike. With so much personal information voluntarily being made
public, it is no surprise things like wall posts and Tweets are showing up as
evidence in court. This is something that all lawyers and their clients need to
be aware of.
Attorneys can mine your Facebook and Twitter
accounts for evidence.
Deleting your social media accounts during trial can
result in penalties.
If you are involved in a lawsuit, talk to your lawyer
about how to use social media while your case is ongoing.
Be Careful What You Post!
Over the last few years, social media sites have become
bigger than some countries. According to Facebook, there are more than 800
million active users on the site’s network, with more than half of these users
logging into the site each day. On average, more than 250 million photos are
uploaded to the site each day, while the average user is connected to more than
80 community pages, groups and events. Meanwhile, Twitter sees more than 1
billion Tweets posted per week, with an average of about 140 million per day.
It is the attorney’s obligation and duty to
accumulate as much information as he or she can in order to support the client’s case or
defend against it. Many lawyers today are learning a lot about the parties and
the witnesses through social media sites. This information doesn’t simply
evaporate into thin air after it leaves your screen. It can be mined, analyzed
and reviewed in civil and criminal cases.
Another example is where a high school varsity
football player suffered brain injuries during the course of a game. The player
had alerted a coach to a malfunction with his helmet before taking the field,
but the coach allegedly brushed off the problem and instructed the student to play
anyway. The case was complicated by the fact that by the time the player sued,
he was in college where pictures of him fraternizing and partying were taken
and posted to his Facebook page. These
pictures gave the wrong impression as to the severity of his brain injury, and negatively impacted his case.
But be careful not to take down your Facebook photos
– a measure which could be construed as tampering with evidence. This kind of
evidence tampering is referred to as “spoliation” in many states and can result
in serious penalties. Instead, attorneys should counsel their clients not post
any new information – especially photographs – on their Facebook page while their
trial is ongoing.
Making Social Media Work for You
This proliferation of evidence isn’t all bad. Plaintiffs and defendants can use social
media sites to their advantage by using these networks to promote their side of
the case.
People can use social media sites to share their
stories accurately and truthfully. As long as you have a message to share and
it is honest, social media can actually have beneficial ramifications.
Attorneys should leverage the power of social media
sites to benefit their clients. As internet access becomes more ubiquitous with
the rise of smart phones, the public, and even jurors, are more likely to
conduct their own research into a case.
Although individuals need to be aware of the
consequences of posting to social media sites, the obligation to remind them of
these ramifications falls to the attorneys. Lawyers need to
counsel their clients about social media and to instruct them to either stop
posting or to update their accounts with honest information about their case. And
people involved in a lawsuit should never post anything that references their
injury, accident or dispute without first talking to their attorneys.
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