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Social Media and the Law

Attorneys Appearing in Court

This post is the beginning of a three-part series we’re going to run on social media and the law. Here, in Part One, we’re going to discuss the implications that social media has for clients who are actively awaiting trial. In Part Two, we’re going to discuss methods that you and your clients can use to keep your social media accounts above board, and avoid potential lawsuits. In Part Three, we’ll discuss the nature of tech giants themselves, and what makes them particularly hard to deal with as legal entities.

One of the biggest changes that social media has brought to our legal arena is the wealth of evidence that social media profiles can provide. Determining what constitutes a reasonable expectation of privacy has become more difficult in the advent of the technological revolution, but most of us can agree that things you’ve posted on your public social media profiles don’t fit the bill. That means that things your client has posted on social media are likely to be fair game.

That has a number of implications for both criminal and civil law. Take, for example, a custody hearing during a messy divorce - evidence of extramarital affairs posted on social media are likely to play a role. Photos of a client looking healthy might play a role in a disability suit between them and their employer. In a particularly thorny way, pictures of clients posing with weapons or throwing out gang signs on Instagram, for example, may play a role in criminal cases - more on that in Part Two.

A lot of social media posts may be eligible as evidence and that means that deleting social media posts may be construed as destruction of evidence if you’re awaiting trial. You should advise your client of best practices surrounding this. It may be reasonable for them to stop posting anything new, but changing privacy settings or deleting posts could land them in hot water. You might not be sure of best practices in your state so talk to your Bar Association, and if litigation is occurring outside of your state, and you lack the expertise, consider local counsel services.

Another time that social media might come into play is during jury selection. You can look at the social media of potential jurors - those same jurors must abide by rules about social media use before and during the trial and deliberations. Don’t hesitate to look into potential biases.

This has been an admittedly very brief overview of the implications of social media on litigation and trials. In the next article, we’ll go over best practices to help avoid some social media pitfalls, both for attorneys and for their clients. These best practices may help you better your practice, so stay tuned for Parts Two and Three.