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How Social Media Is Changing the Way We Litigate

By Casey C. Sullivan, Esq. | Last updated on

There's an endless supply of cute cat pics on Instagram. Facebook is great for finding out what your aunt thinks about Donald Trump. And Twitter is -- well, Twitter is still figuring things out.

But, while we use social media to connect, communicate, and consumer, these websites and services are actively changing the way we litigate, offering new sources of evidence and raising novel ethical issues.

From Friending Jurors to Tweeting at Judges

Social media platforms can be important research tools. Challenging a worker's compensation claim? A quick hunt through Facebook can show that your injured ex-employee was actually out riding her four wheeler through the forest, not lying immobile on her couch. More than one divorce settlement has been made after a client's social media account became public. In some fields, social media has become the de facto source of litigation evidence.

But social media also raises important ethical issues for lawyers. For example, lawyers in a longstanding dispute between Google and Oracle were recently asked to disclose the extent of their online research into potential jurors. U.S. District Judge William Alsup asked for the disclosure after he realized the attorneys wanted extra time to review juror questionnaires so that they could "scrub Facebook, Twitter, LinkedIn, and other Internet sites to extract personal data on the venire."

Such searches, Judge Alsup wrote, undermined the jury system. (The ABA, though, has decided that "passive review" of jurors' public social media does not violate attorney ethics.)

Aside from juror research, some have even raised objections to social media connections between attorneys and judges. In one ongoing Ninth Circuit case, petitioners are proposing that "the mere existence of social network relationships between a judge and one of the parties appearing before him creates an appearance of bias."

Using Social Media to Your Advantage

But whatever ethical questions social media use raises, they're largely outweighed by potential benefits. Social media accounts, after all, are a treasure-trove of potentially valuable evidence.

While the role of social media in litigation is still a developing field, there are plenty of helpful guides to help you take advantages of the benefits social media offers, while avoiding its pitfalls. The Social Media and Litigation Practice Guide, published by Thomson Reuters' Aspatore, for example, offers attorneys "a much-needed weapon in the arsenal of trial lawyers practicing in the Digital Age." (Disclosure: Aspatore is one of FindLaw's sister companies.)

Written by John G. Browning, one of the nation's lead authorities on social media and the law, the Social Media and Litigation Practice Guide offers everything from sample discovery requests, to ethics advice, and instructions on getting social media content admitted into evidence.

It's an essential addition to any litigator's library, now that we practice in an age where your "smoking gun" could very easily be a Facebook post.

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