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This is a Power Litigation™ article or BucklinTrial Notebook™ article
authored by Leonard Bucklin, a Fellow of the International Academy of Trial Lawyers.
Fellowship is by invitation only, and is limited to 500 trial lawyers in the United States.
Trial lawyers are invited to become Fellows only after an extremely careful vetting process
that includes discreet inquiries of both judges and trial lawyers of high standing.

Social media trap for you,
and for clients and witnesses

Many litigation attorneys still do not know about social media tools (and why they need to know about them). Social media sites are on the Internet and mobile phones as tools for individuals to share information about themselves. They are cheap or free to the user. You have undoubtedly heard of some social media tools like MySpace, Facebook, Twitter, YouTube, and blogs. You may not know of Friendfeed or Avatars United or Second Life or Flckr, because the number of social media sites grows constantly. There are now more than 200 social networking sites on the Internet, and when you read this there will be more.

If your client, your witness, or the adverse witness has used a social media tool, then there is personal information there about them. And the information may be disastrous to the credibility of witnesses. Twitter, for example, advertises that “Twitter is a free service that lets you keep in touch with people through the exchange of quick, frequent answers to one simple question: What are you doing?” If a plaintiff has used Twitter to tell others what he/she has been doing after the back-injury vehicle accident, then potentially you can find out more than the claimant wants you to know. The value of the back injury goes way down if claimant has Twittered that he had just finished surfboarding and is on his way to the big beer party at his girlfriend’s house. That junior IT person being deposed may well have a personal blog on the internet discussing his job, in which he blogged that the “litigation hold” is a farce because the backup tapes are being overwritten and the lawyers are too stupid to ask him what to do!

It’s true that by sheer numbers most of those posting in social medial are less than 50 years of age. However, if you think the use of social media is limited to teenagers and techies, think again. The ABA has a Twitter site for attorneys so they can tell others “what are you doing now”. Likewise state associations, like the Texas State Bar Association has a social media network (Texas’s is called an “affinity circle and named InCircle), in which the association asks lawyers to “Tell members about your career, hobbies, family.” LinkedIn is used particularly by corporate executives and claims to have more than 20 million registered users from 150 different industries. The corporate Executive VP you are deposing tomorrow may be looking for a job right now via LinkedIn. All sorts of professional and business associations are now running social media networks. Your accountant witness may have posted pictures in an accountant’s social media site touting her tax-avoidance seminar held in the Turks and Caicos Islands. You get the picture: social media is not only for teenagers and techies.

As for blogs — even corporate executives are using personal blogs. Jonathan Schwartz, the CEO of Sun Microsystems encourages his employees to blog. Some 3,000 of them--10% of the company's payroll--do. Schwartz has led by example, integrating blogging into his leadership life. In a 2005 opinion piece in the Harvard Business Review, titled "If You Want to Lead, Blog,” Schwarz wrote: "For executives, having a [personal] blog is not going to be a matter of choice, any more than using e-mail is today.”

So, changes are good that your client, the adverse party, and witnesses on both sides may have comments about themselves — their health — their prejudices – and even about the litigation in which they are involved. Good or bad self-comments about the witnesses or the witness’s statements about the subject of the litigation may be available if you simply ask ....Read more.

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