Last week I had the privilege of participating in a panel presentation on social media and the internet for lawyers at our local bar association. On the panel with me were a jury consultant and two trial court judges. I started the program with an introduction to the major social media platforms, ethical pitfalls for attorneys using social media for marketing and business development, and a discussion of the reasons lawyers need to be familiar with social media platforms and how they're used - even if those attorneys are not going to use social media themselves. My fellow panelists discussed how internet use and social media have changed the landscape for trial attorneys.
This morning, one of my fellow panelists, Edward Schwartz from TrialGraphix, alerted me to yet another example of why lawyers need to keep abreast of these issues and how they might affect their clients' cases.
In a St. Louis sexual harrassment case brought by a female police officer who claimed not only sexual harassment, but also retaliation after lodging a complaint, a juror used Google to do research about whether the plaintiff would receive the proceeds of a punitive damages award. The jury verdict was for $7.5 million, $7.2 million of which represented the punitive damages award.
It has been reported that, after seeing the reaction of the attorneys to the award when it was read in the courtroom, the juror who performed the search confessed his misconduct. Further hearings are being held to determine whether the misconduct affected the award and whether a new trial will be granted.
This is just one example of how mobile devices and the use of the internet has changed the practice of law. Of course, this particular tale doesn't involve social media, but there are plenty of other examples that do involve social media (see my previous post on Confidentiality, Ethics and Social Media, which involved a client's family member' use of social media that jeopardized another award or this article discussing issues with respect to jurors and social media).
Other issues that may arise with social media during your representation of a client include:
- Accessing social media sites of parties or witnesses in litigation for discovery and investigation
- Accessing juror's social media sites for jury selection and information about how best to present arguments to particular jurors
- Jurors accessing attorneys' social media sites to research the attorneys involved in the case
- Preservation of social media evidence in litigation
- Use of social media posts as evidence at trial
It is no longer acceptable for attorneys to close their eyes and ears to social media; even if you aren’t planning to use social media yourself to market your practice, it makes sense to have a working knowledge of at least the basics of each of these platforms, what they’re used for, who uses them, and how.
Clients, witnesses, adversaries and jurors are all using social media tools, which may become a key component in a client's case. Since almost everyone has a powerful computer in their pocket these days in the form of a smartphone that they can use to post to or obtain information from the internet almost any time, anywhere, it is imperative that lawyers stay informed about these issues.
And if you need further incentive, in 2012, the American Bar Association amended the Model Rules of Professional Conduct to make clear that lawyers have a duty of competence with respect to technology. Specifically, the ABA amended Comment 8 to ABA Model Rule 1.1, governing competence, to provide:
Maintaining Competence. 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, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
One way to get an introductory knowledge of these issues is to review our presentation from last week. Contact the Suffolk County Bar Association to find out how to purchase or view an online recording of our program, "Social Media in Litigation and Law Firm Management."