Twitter describes itself as “a real-time information network that connects you to the latest stories, ideas, opinions and news about what you find interesting.” More importantly, Twitter users communicate using “tweets,” 140-character bursts of information. For litigators, these tweets can be a gold mine, a minefield or a wild collection of information missing an index. The key, of course, is effectively mining tweets to find the important nuggets.
IT’S LIKE IGNORING EMAIL, BUT WORSE
Most lawyers think of Twitter as a way of broadcasting to others in 140-character chunks of text. Other lawyers think of it as a way to gather information from a variety of nonmainstream (and mainstream) news sources.
As more and more people use Twitter, it has become another tool for litgators seeking to investigate witnesses, opposing counsel and jurors. As a result, we have had some funny conversations with “ye olde garde” about using Twitter and other social media tools.
What they are learning is that Twitter is a window into the personality and predilections of people who can have a great impact on the outcome of a trial. Those bland voir dire questions and depositions often can’t match the value of the independent, real-life statements and social views expressed in Twitter’s microblogging platform.
If more lawyers understood the benefits of Twitter as an investigative tool, more of them would use it. The trick to realizing Twitter’s value, however, is to become more familiar with it and how people tend to use it. And the best way to understand any investigative tool is to use it.
And let’s face it—Twitter’s been front and center in several high-profile cases. Judges have ordered discovery of the Twitter accounts of WikiLeaks supporters and the Occupy Wall Street protestors. With more than 500 million user accounts—and growing—trial lawyers can’t afford to ignore this communication medium.
So let’s dive in and talk about how a trial lawyer can tackle Twitter.
The first thing you need to do is navigate to the website and sign up for a free account. (For more information on setting up a Twitter account, visit wikihow.com/use-twitter.) Take some time to learn the Twitter lingo; after all, soon you’re going to be tweeting, retweeting, participating in tweetups (which involves using Twitter to meet and talk with other Twitter participants) and following hashtags (e.g., #ABATECHSHOW) or trending topics. You will also want to learn how to create lists to organize Twitter accounts into groups of businesses or personalities that are related in some way. For instance, you might create a list of the accounts that regularly tweet using the hashtags #ediscovery or #elawyering.
On the other hand, you don’t need to have a Twitter account to search Twitter for information relevant to your litigation. However, Twitter doesn’t make it easy for you to find the back door to get inside and find the information you need without signing up.
When looking into jurors or witnesses, it’s important to create private lists to “follow” their Twitter accounts. Some lists are public, which means that others can subscribe to your lists and see who’s on them. Remember that following a juror or opposing witness’s account directly with your own Twitter account may violate ethics rules in some jurisdictions if your conduct is interpreted as the equivalent of “contacting” that person directly. The ethics rules are evolving in this area, so it’s best to be conservative when using social media to monitor others for litigation purposes.
ABA Model Rule of Professional Conduct 3.6 also limits what a lawyer can say about his or her own cases publicly, so be careful when using Twitter to discuss topics that relate to your legal work. The Model Rule says that you cannot say anything that “will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”
In that vein, consider the actions of Florida lawyer Mark O’Mara, who recently launched a social media campaign on behalf of his client, George Zimmerman, a neighborhood watch volunteer accused of killing teenager Trayvon Martin. O’Mara’s efforts included a blog, a Twitter account and a Facebook page. Were these efforts not meant to somehow “prejudice” the matter? This is a gray area in the law that lawyers should be mindful of—and another good reason not to blog or discuss your own cases using social media in the first place.
YOU CAN’T MAKE THIS UP
Jurors across the country are being caught searching the Internet and tweeting when they are supposed to be listening to the proofs. Some are even blogging updates on the case from the jury box. A recent survey of selected federal judges revealed that 79 percent of them said they had no way of knowing if jurors were using social media in their trials, despite being admonished not to use it. While Facebook use is often hard to detect (because it generally requires the parties to both join Facebook and then “friend” each other), Twitter posts are almost always completely public. All you’d have to do is find out the person’s Twitter “handle” (i.e., the unique user identification they tweet with).
Some judges are requesting jurors’ Twitter handles so they can monitor them and ensure that jurors are not disclosing information regarding the case or conducting outside research. We expect that more judges will request social media account information as awareness of jurors’ unauthorized social media activities increases among the judiciary branch.
Often a person’s Twitter handle is his or her name or some variant of it, and you can search around and generally find their Twitter handle if you’re good at using Twitter to search for information. If judges wanted to know whether jurors were posting improper information to Twitter during a trial, all they’d have to do is ask them during the selection process if (1) they have a Twitter account, and if they do, (2) what their Twitter name is.
No doubt attorneys would appreciate having the ability to quickly look at a potential juror’s tweets and see what sort of person they are based on their tweets. In the pre-Internet days, some judges would ask potential jurors if they had bumper stickers on their cars and, if so, what those bumper stickers said.
Think of Twitter posts as a car bumper with an unfathomable number of stickers on it. Would you want to see those bumper stickers before selecting a juror? Obviously, you would.
A number of tools can help you organize Twitter streams, attract followers and follow others, save term searches, conduct analytics involving the data and create lists of Twitter handles you want to monitor.
Some of our current favorites are listed below, though the list is always evolving as companies roll out improvements to their Twitter management platforms:
- Sprout Social
We also like using Buffer (bufferapp.com) to set tweets for posting to the Twitter feed at different times of the day.
But how can you most effectively read a prospective or current juror’s tweets?
You can go to the Internet and type in the juror’s username after “twitter.com.” So if the potential juror’s Twitter handle is “@juror” you would type in “twitter.com/juror.” Then you could read a handful of the juror’s tweets, and you could keep scrolling and have your browser refresh to add older tweets to the feed. This manual review process can be inefficient.
You could also follow the juror, but you’d have to have a Twitter account to follow them. Doing that would allow you to see new tweets in your account feed as they were posted to Twitter, which is fine for keeping up with new content. But it is risky from the standpoint of possibly being perceived by ethics committees as violating a ban on contacting jurors for the reasons described above. Yet we find this concern hard to understand; how would following an account posting public content constitute “contact” with a juror?
Many Twitter users default to having Twitter send them an email when someone follows them for the first time. Some Twitter users also have an automatic message sent to new followers thanking them for following them. Obviously, this kind of contact is not the kind that judges are worried about, but some judges might not understand how Twitter works and not like the fact that an automatic email message was exchanged between an attorney and a juror.
The best way to read a juror’s tweets is to use a tool that lets you download their past tweets quickly but in a way that doesn’t notify the juror or create a contact of any kind. If you have an Apple iPhone or iPad, you can buy an app called Tweet Keeper that lets you download the last 3,200 tweets of any Twitter user. The limit of 3,200 tweets is imposed by Twitter, although most folks on Twitter have not posted that many tweets. Even with that limit, being able to get a couple of thousand tweets from a potential juror is going to give you a lot of useful information.
Tweet Keeper costs only $1.99 as of this writing. It has a limit, though, and only lets you download and monitor the tweets of up to eight users. So if you were going to monitor a large jury pool, you’d have to have more than one iPhone or iPad.
Another benefit to be aware of is that Tweet Keeper lets you search across all of those 3,200 tweets to find ones that have certain words or phrases in them. If you have an iOS device, you should download the app and play with it to get a sense of what it can do.
The more you understand Twitter, and how people typically use it, the better your investigative skills will be. Consequently, you should learn to use Twitter to post information or view others’ tweets, even if you feel like you have nothing worth sharing with others. Many people start to get comfortable with Twitter by observing how others use it.
One of the best books for lawyers to learn about Twitter was just published by the ABA Law Practice Management (LPM) Section: Twitter in One Hour for Lawyers by Jared Correia. Although the book doesn’t cover the use of Twitter for investigative purposes, it’s still a great guide for lawyers who want to understand the basics of Twitter.
IS TWITTER COMPETENCE A MATTER OF ETHICS?
On August 6, 2012, the ABA House of Delegates approved amendments to the Model Rules of Professional Conduct that change the definition of competence under Rule 1.1. In particular, Comment 8 states that, “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”
In its report, the ABA Commission on Ethics 20/20 noted that the “proposed amendment, which appears in a Comment, does not impose any new obligations on lawyers. Rather, the amendment is intended to serve as a reminder to lawyers that they should remain aware of technology, including the benefits and risks associated with it, as part of a lawyer’s general ethical duty to remain competent.”
The revision to Comment 8 makes sense: The best way to stay out of trouble with any medium is to understand how it works. If you are uneducated about technology and social media, you are more susceptible to tripping up.
So go ahead, dig in, and start using Twitter. And let us know how it goes.