The Practice Corner: What I Have Learned About Social Media (Some of It the Hard Way)
by Daniel DeWoskin
Trial Attorney
www.atlantatrial.com
Like all attorneys who live somewhere other than underneath a large rock, I have seen many of the benefits and detriments that social media can bring to a legal practice. There are countless articles on how we as lawyers can engage social media to market and network with others in our own communities and beyond. There are also articles advising us on properly counseling our clients as to the recommended use or refrain from use of social media while cases, both civil and criminal, are pending. It is my hope that this article presents at least some new thoughts on the topic, but if they were all that new, I would likely be better off just posting them on Facebook.
This week, the Fulton County Daily Report featured an article about a young plaintiff in an automobile collision case whose verdict was almost certainly negatively impacted by her posts on social media sites. These posts undermined her claims of pain and featured her in a less than wholesome light. Plaintiffs’ lawyers in personal injury cases, myself included, go to great lengths to explain these types of consequences to our clients as we plead with them to avoid using social media during litigation, but we might have just as well asked many of them to stop eating or breathing.
Social media is here to stay. This is not one of the new insights I mentioned I wish to relate. The issue is how we can realistically get our points across to our clients that our adversaries, those who have diligent counsel, will make some inquiry or investigation into social media if it can benefit their case. What troubles me most is the look of surprise that my clients give me when something negative is discovered and revealed to my clients with respect to social media. This is like a person with a bumper sticker being shocked to find out that somebody read the bumper sticker. If you are proud of the fact that you would like to see Neil Young for President, proud enough to place a banner on your car, then you should be proud that people are reading about your particular assertion.
Yet, social media is different. For all the restrictions that can be placed on a user’s account, for all the privacy or lack thereof, people feel as though they are hiding in plain sight. Perhaps there is some measure of truth in this belief. The problem comes when someone else takes an interest or begins looking into something specific. Think of the Daniel J. Simons selective attention test. If you are unfamiliar, check out this video on YouTube and you will understand, http://www.youtube.com/watch?v=vJG698U2Mvo. We pay attention to what we want to pay attention to, and thus we may end up having to take responsibility for comments, thoughts, and beliefs that we are proud of when making, but only to a limited audience.
I myself participate in social media for diversion. I do not often talk about specific cases, but may comment on current legal or political events for the purpose of entertaining either myself or those who read my posts. I am cautious and do not post many personal pictures of myself or my family. I try to meticulously censor what I choose to post so that I do not inadvertently or spontaneously post something that I might later regret.
As we discuss all of the negative things that can come from our clients using social media, we must acknowledge that many will nod, sign letters noting that they have been advised, and signal that they are perfectly clear as to our instructions. They will then walk out of our offices to their cars, and tweet about how great their lawyers are and how they are going to win their cases big. It can be the one of the most frustrating things we as lawyers have to deal with these days.
It is important to note that the reason that we try to advise our clients to be cautious when using social media during pending litigation is not to allow us to hide the true status of their injuries, but to avoid giving false or misleading impressions of the clients. If every picture that you appear in on facebook shows you drinking alcohol, is it fair to presume that you drink alcohol frequently? Daily? Opinions may differ, but these days, depending on how active we are socially or professionally, lawyers may appear in hundreds of photos that are taken at all sorts of events. Whether it is accurate or not, we should be vigilant as to how collectively these pictures depict us. This is all the more true for our clients.
In closing, I am certain that social media and the privacy issues will continue to develop in many ways, some foreseeable and others that are not. As lawyers, we will be at the forefront of many of the discussions as they unfold. Hopefully, the time and effort we put in toward the goal of fully advising our clients will prevent our clients from suffering more than had we not taken such measures.