Social Media Research -- Is Your Attorney On the Cutting Edge?
Updated: Apr 14
By Clayton T. Robertson, Attorney-at-Law (Criminal Defense / Civil Litigation Attorney)
How sophisticated is your attorney? Are they using technology like they practice in the 21st century? Or are they running a practice that looks like it's from the 1970s? I have worked for both types of practices, and when I worked for a "1970s-style" practice (I'm exaggerating a bit, but the emphasis on technology was terrible) I realized it was time to work for myself.
Concerning social media, there is a vast world of potential evidence out there that could affect your case. Witnesses post comments, pictures, videos, and other information about your case (including identifying other possible witnesses or evidence). This is true in both criminal and civil cases.
Unfortunately, some attorneys feel overwhelmed with social-media research. Many are confused by the rules (including the ethics rules). Others underestimate its potential value. Others might simply be "too busy," but that's no excuse. Or they might not be technologically sophisticated. That's just as bad. There are no excuses. You need an attorney who is up to date on this subject.
There are programs that are now used by attorneys and/or by their investigators that allow your trial team to systematically research the social-media pages of witnesses. I won't list them here, but they are available. There are also options that allow attorneys to research the social-media pages of prospective jurors to make sure they are telling you and the court the truth about their backgrounds and their opinions, values, and beliefs, all of which might make them a bad fit for a particular case and might make them unable to be fair and impartial in your trial. Recently, we've also heard of instances in which police officers post inflammatory information on their social-media pages that undermines their credibility. But if your attorney is not conducting this research, you will never know.
I have been on recent webinars in which social-media research has been discussed extensively. There is an increasing consensus that it constitutes ineffective assistance of counsel for a trial attorney to go to trial or resolve a case without checking social media for exculpatory, mitigating, or favorable (or, for that matter, unfavorable) evidence. In my opinion, this is equally true in both criminal and civil cases.
There are ethics rules on social-media investigations that vary by jurisdiction. There are also ethics opinions specific to particular sites. For example, as I understand it, a search on LinkedIn is a problem when researching prospective jurors because LinkedIn gives users the option to view who has viewed their profile, which means that an attorney violates ethics rules that prohibit "communications" with jurors when potential (or actual) jurors are able to learn who viewed the profile (among other problems). And there are numerous other rules on how your attorneys conduct social-media research. This is a complicated subject, so you need an attorney.
I should note that another set of rules is triggered in terms of what an attorney should advise their own clients about their social-media accounts in light of anticipated or actual litigation. Again, this gets complicated, and you need legal counsel for advice.
Lastly, as I state in my disclaimer on this site, you cannot rely on this site, or this blog, for legal advice. This is particularly true when it comes to social media. This is a complicated subject, and you need a sophisticated attorney who is knowledgeable about its benefits and potential pit-falls as it relates to the facts and issues in your specific case.