Litigator’s Playbook:
Making Use of the Internet

by Jeri Kagel, M.Ed., J.D.
Trial Synergy, LLC
www.trialsynergy.com

The word “network” is defined as an “interconnected system” – a “lace” or “grid.” It used to be that when people talked about “networking” they meant a gathering of people – to get jobs, to offer referrals or to share ideas about certain topics or areas of interest common to a certain group of people.

Today, “networking” is primarily seen as an activity that occurs on the Internet. While there continue to remain ways to meet and greet in our actual lives, more and more is happening online.

“The Social Network,” 2010’s hit movie that brings to life the founding of Facebook (an Internet social networking site), has drawn large crowds at movie theaters across the country.

The actual Facebook has, by its own account, more than 500 million users with 50 percent of those users logging onto the site everyday. In July 2010, Georgia alone, according to Facebook, had more than 4,864,000 users.

Although arguably the most successful, Facebook is one of many different social networking sites, with MySpace and Twitter being very popular. There are business-networking sites like Linkedin.com, ways to find old classmates like Classmates.com, ways to find other people to “meet up with” at Meetup.com, and more.

Litigators are always interested in learning about people. Typically, to get information, we ask them questions.

Prior to going to court, we use “discovery” to learn about opposing parties and their potential lay and expert witnesses. We ask questions – on paper or under oath.

In the courtroom we ask voir dire questions in our attempt to learn about our panel. We design questions to elicit information that may be relevant to how potential jurors will interpret our evidence and how they might respond to our client and our witnesses. We ask voir dire questions so that we can best determine whom we believe will be most likely to decide the case for or against us. And we ask more questions, of our clients and witnesses, to learn who knows who and what, if anything, someone might know about juror X, Y or Z.

Our litigation structure, with some tweaks here is likely to continue in its present form for some period of time. We will do most things “face to face.” Yet, if you have not already, it is time for you to learn how to use the Internet to your advantage. Use social and other networking sites to discover information about your client, about your witnesses, about your adversaries, about your potential jurors.

Understand that many people you will depose and many called in for jury duty are “on the Internet.” People make use of one or more Internet networking sites where they are voluntarily and often unabashedly talking about themselves and providing the information we want to know. They may post pictures of themselves in what they consider to be funny or otherwise informative situations. They “talk,” telling the world all sorts of things, from what songs they like, their politics, their relationships, even what they do or don’t like about their jobs. You name it and people talk about it online.

Colleges and businesses use Facebook to learn about prospective students and employees. Some courts have allowed information found on Facebook to be used as evidence in cases.

You can use it to supplement, or instead of, other kinds of surveillance. You can find answers to questions before you actually ask the question – at depositions or in court. A personal injury attorney with whom I worked recently found information about an opposing client on Facebook prior to beginning her deposition. Then, armed with information about the kinds of recreational and employment activities the deponent had recently enjoyed, this attorney asked questions and the deponent answered as though her physical and emotional pain prevented her from being active. Showing the deponent her own Facebook posts, the attorney was able to undermine the deponent’s presentation of herself as emotionally and physically wounded. Being able to discredit the deponent so quickly, so effectively and so inexpensively was good for the case and a welcome advantage greatly appreciated by the attorney’s client.

Some of us love getting on the Internet for fun or work, on our own social or business networking pages, on our own websites to update them, or blogging. Others of us feel less comfortable and find spending time online a bore, or somehow less rewarding than other ways of interacting.

Whoever you are, know that it is time to think of the Internet as your friend and time to understand that the Internet can make you a better attorney! Learn it! Use it!

Next month, Litigator’s Playbook will explore how to protect yourself and your case from jurors’ use of the Internet.