Over the last decade, social media platforms have burst into existence, quickly becoming a dominant and influential force in many people’s everyday lives. Platforms like Twitter, Facebook, Snapchat, and LinkedIn serve valuable purposes by allowing us to stay informed of noteworthy events in our loved ones’ lives, and learn about news at breakneck speed. It provides an easy way for people separated by great distances to communicate, and a means for individuals to broadcast a message to a large number of people.
For all of the benefits of social media, the social media content generated by a client can often be very problematic for a lawyer. A client who regularly generates content on his social media profile often inadvertently creates a colorful timeline, identifying where he was, who he was with, and what he was doing on any given date. A client’s own words on social media can be used to contradict testimony he has already given. Photographs or video footage taken from a client’s social media account can be used to rebut the client’s claims concerning the nature and extent of injuries sustained in an accident.
Not only is the content broadcast by a client on social media potentially dangerous in the hands of adversaries, it can also generate an unwanted negative impression in the minds of jurors. At the outset of a jury trial, members of a jury are usually instructed that they are not to perform their own research into the facts of a case under consideration. In the days before the internet and social media, this was an easy instruction for jurors to follow. Now, it is safe to assume that as soon as a juror is selected and goes home after the first day of trial, he or she will immediately search for the parties on social media to find out more. Publicly viewable posts that have a sexually suggestive, politically charged, racially insensitive, or otherwise offensive nature could cause that juror to “tune out” the client when the trial resumes the next day. While many jurors will likely head the court’s instruction to refrain from independent research, the attorney must be prepared for the worst. The client simply has too much at stake in a trial to risk irrelevant and harmful social media content from distracting the jury from important merits of the client’s case.
What is the lawyer to do with the unsavory picture painted by the client’s own social media content? The first step is to ascertain early in the representation every platform on which the client was active, and review everything through the eyes of the opposing attorney. The lawyer cannot recommend deleting or destroying any damaging evidence, as doing so would be unethical, if not criminal behavior. However, there are four simple, ethical, and legal steps a lawyer can take to minimize the negative impact of the social media content generated by a client: (1) advise the client to increase the security settings on the social media platform so that only individuals the client personally knows can view the content on the client’s social media page; (2) instruct the client not accept requests to connect on the social media platform from persons the client does not know; (3) have the client cull through existing contacts and sever connections with individuals not personally known by the client; and (4) tell the client to cease posting anything that remotely has bearing on the case (even better, stop posting altogether). While a client is required to abide by lawful discovery issued during the course of litigation, it does not serve the client’s best interest to generate (and offer to the public free of charge) evidence that may be used to damage his legal claim.
Steven R. Covey famously wrote that “the main thing is to keep the main thing the main thing.” A client generates social media content without thinking about how it may later impact his life in the courtroom. In civil cases, the social media content generated by a client rarely benefits him. Once involved in the pursuit of a claim, a client who wisely manages his approach to social media wisely can minimize the distraction and damage caused by seemingly innocent social media posts. Removing the distractions allows a jury to put all of their focus on “the main thing,” the client’s case.