When legal experts look back on the summer of 2013’s most high-profile trial, they may discuss race and stand-your-ground laws. But they may just as likely refer to it as the trial by tweet. For better or worse, the social media network that deals in 140-character communications was as much a personality in this trial as the defendant, the victim, the attorneys, or even Juror B37.
The Mark O’Mara Law Group, which represented George Zimmerman, had multiple Twitter handles posting updates during the trial, as did Zimmerman’s older brother and Trayvon Martin’s family attorney, Benjamin Crump. Other social media sites, including YouTube and Facebook, offered each side’s spin on the case, before, during, and after the trial. Twitter is credited (or blamed) for spoiling a potentially lucrative book deal for Juror B37.
No matter one’s opinion on the Zimmerman trial’s verdict, one thing remains indisputable: the age of social media in the courtroom is here. The question is no longer whether to mine the depths of the Internet for information for a case, but how to do so legally, ethically, and responsibly. Here, experts weigh in on the complex answers, looking at when to use social media, and when to turn off the WiFi.
“For a long time, attorneys were not interested in social media, because they thought it did not impact them,” explained Nicole Black, a Rochester, New York lawyer, author, and director of MyCase, a cloud-based law practice management platform. Despite the relative newness of social media, lawyers waited for several years to pass before engaging the medium. Research from Radius Intelligence supports her assertion, finding that law firms were less active on social media than other types of businesses. Other industries, like real estate sales, were quicker to adopt social media as a marketing and communication platform.
“Lawyers are always behind in technology,” said Barry Willms, director of project management and consulting of E-Discovery Division for Nashville’s Counsel On Call. “But my experience on the legal side of things is in discovery.” In particular, Willms said, social media has become important in family law because people put so many details of their personal lives online. “It is the first place lawyers in divorce or workers’ comp matters will look.”
Indeed, what appears like a harmless status update about heading to the gym or a frustrating encounter with a soon-to-be-ex to a lay audience can be a gold mine of information to an investigator or an attorney in a family court or workers’ comp case.
Daniel C. Tighe, an attorney in a small firm in West Palm Beach, Florida, believes that the firms and lawyers lagging behind need to come to grips with the information age. Tighe, who primarily handles litigation for civil trials, said doing a Facebook and Twitter search at the beginning of a case has become a standard practice as much as doing a Lexis search is. When first determining a case’s merits, Tighe is less worried about whether what he finds online will be admissible at trial, but whether it gives him information that will hinder his client. Because Tighe represent plaintiffs with physical injuries, he said that social media will never help their case.
“The way that we look at social media is that there is only a downside for our clients. We tell them, do not take down your pages, do not edit, but as a layperson, there is nothing that you can say on social media that will make your case,” he said. “You have an advocate who can do that. We tell them just not to post anything new that could relate to the case. The only thing posting can do is harm your case.”
However, even with the risk of harm, Tighe and others caution clients not to delete information from their social networking sites once a case is underway. While it can be tempting, they remind clients that nothing can ever really be removed from the Internet. The information is cached and can be easily retrieved. Being caught trying to remove something potentially damaging may have worse implications than leaving it be. There have been cases of attorneys who were fined for advising their clients to scrub their online footprint.
Investigation Via the Internet
Managing a client’s use of social media is just one small piece of the Internet puzzle that attorneys now need to solve. One of the most common uses of social media is during voir dire and jury selection. Googling a prospective juror is one of the first steps a legal team will take during the selection process, said Rachael Powell, director of social media for Elasticity, a St. Louis-based consultancy. Firms like Tighe’s send paralegals and others in the office information about the jury selection process so that they can research while the attorneys work in the courtroom. In some instances, courthouses have added WiFi so that attorneys can work more efficiently (typically this is for reporters and attorneys, but not the general public). Searches may look for posts about a high-profile case, or more mundane opinions about relevant laws and rulings, evidence of having been the victim of a crime, and other issues that are discussed in voir dire, with the benefit of more information across a cross-platform of networks.
“It is basically like an employer performing a search before they hire someone,” explained Kristen Marquis, a member of the California bar and blogger who specializes in social media and the law. “You can find out so much more about a person today. People go to social media to share their truth. Maybe there is something that would not get expressed in the courtroom. You can see what they are really thinking on Twitter. In a way, I think it adds another layer of vetting.”
Of course, each jurisdiction is different. The rules about how lawyers can interact online vary by jurisdiction, Marquis added, and many of the details of those guidelines are still being determined.
But Black said a few rules are almost universally applicable. In general, she said, if a piece of information is behind a wall, for example, an attorney would have to be Facebook friends with a person to see a status for “friends-only,” then that is generally off limits. A tweet or Google Plus post that is set for a public audience is fair game. In addition, attorneys have to be upfront about what they’re doing, said Black. If a lawyer submits a request to be friends with someone on Facebook with the intent of using information she gets in court, she must disclose that (making it unlikely anyone would ever accept that request).
“You need to understand the different platforms you are using,” she cautioned. “You are not supposed to make jurors aware that they are being investigated. That can cause a mistrial. On LinkedIn, for example, depending on the settings, a person can see who has viewed their profile. If a juror knows a lawyer has seen her profile, they may know that they are being investigated.” Obviously, lawyers should not act in a way that is misleading or offer other reasons for wanting access to the person or information.
Willms is also concerned about the distractive nature of devices in courtrooms. While journalists and sketch artists have long had pencil and paper to document trials, laptops, iPads, texts, and tweets are intrusive in different ways. Other interruptions are possible. In the Zimmerman trial one witness was to be questioned long distance by Skype. Unfortunately, the witness’s Skype name was viewable, allowing other users to see it and interrupt or join the conversation. The Skype conversation was scrapped in favor of the witness’s testifying by speaker phone.
In some jurisdictions, such as Cook County, Illinois, the home of Chicago, cell phones are no longer permitted inside the Leighton Criminal Court Building. The ban went into effect in April 2013 after concern that activity impacting criminal trials, including texting testimony to a witness, had occurred. A plan to prohibit cell phones from other Cook County criminal courts is in the works. While the ban exempts some (e.g., lawyers, journalists), the great majority that bring phones with them are not allowed to bring them inside the building. The court supplies a vending machine-style locker system allowing for safe storage while business at court is conducted.
Across the country, judges are grappling with how to get jurors to follow instructions to avoid social media for the duration of a trial, including offering more detailed explanations of why avoiding something that seems innocuous, like Facebook, could put the process of a fair trial in jeopardy. In Maryland, a murder case was declared a mistrial when a juror printed some information about the case found on social media and brought it to court. In another, two jurors became Facebook friends with a victim’s mother.
In cases like the Zimmerman case, social media is not just an investigative tool or possible evidence, but a way in which attorneys on both sides tried to sway public opinion.
“Attorneys want to get their voices heard,” explained Marquis about the trend toward Twitter-feed courtroom updates and other spin that was just a few years ago confined to a TV interview. In the end, she said, it is crucial that lawyers who log on are sure that what they are posting, tweeting, reading, or forwarding does not impact the attorney-client relationship. n