Sure, if you have a practice, you’re probably adept in particular fields. That said, the best in their field aren’t simply legal experts. Those who win cases and have the best litigation record are firms (and individual lawyers) who bring the most convincing argument — hopefully the truth itself.
After all, the most famous legal movie line isn’t “You can’t handle the law!”
The ability to prove a case (or disprove suits) is exactly what clients want when they’re searching for a lawyer, at least in most cases. Knowing how to work the legal process is part of it (filing appeals, etc.), but research is what builds the best case.
Enter social media.
Before you think this article is about improving social marketing in your firm, it’s not. Your social presence, important as it may be, isn’t the most crucial aspect. In this resource, you’ll learn the value of social media research. Or, the digital footprint of both your clients and your opposition in litigation.
How helpful is social media research for legal cases?
Social media is frequently used in cases across the U.S.. And if you haven’t already had it happen, it’s likely to be used against you soon enough. If for no other reason, you should use social research because your opposition is doing it. But it’s also a powerful resource.
In years past, to see what people were up to, you’d have to hire a private investigator. A PI would follow, look up, track down and record everything they could — allowing you to use it for your cases.
Now, nearly everyone puts their actions, desires, locations and habits on display for the world to see. All you have to do is find it, ensure accuracy and take notes for your cases. As you’ll see further on in this article, social media is admissible in court — so long as it is accepted (again, more on this later).
Examples of Researching Clients (Before and During Representation)
At the risk of sounding counter-intuitive, your clients don’t know the law very well. Many times, those who come to you for representation think they’re telling you everything. But that’s likely not the case. As thorough as your onboarding process is, there are still things that slip through the cracks.
- “I haven’t driven on a suspended license…Oh, that’s on my uncle’s property, it doesn’t count.”
- “Yeah, I went on vacation during that time, but they can’t use my Facebook profile. That’s private!”
It’s way better for you to find these things before you agree to represent a client, let alone when you’re in the courtroom hearing them for the first time. In order to do this, you can ask potential clients for their social profiles and/or run a quick social report in Tracers.
Not much detail is needed here.
If you represent individuals, it’s best to know everything you can about them. In addition to background information and other records, seeing their social presence will give you a better understanding of each client and see potential evidence in the future case. These details will pop out as you scroll through Facebook, Twitter, LinkedIn and other profiles.
Examples of researching opposition
Key takeaway: Social media content, when properly sourced, is admissible in court.
The bulk of your social media research is for cases. Giving a list of all the ways you can do this is difficult, but depending on your field of expertise, you should be able to gather some ideas of your own.
To give a solid idea of exactly how an individual’s or company’s content is used in court, here are a couple of solid examples — court cases included.
1. Accident/incident/injury cases (Largent v. Reed)
Accident cases are perhaps the easiest example to understand when it comes to social media research. A client or your opposition says they’ve been injured and a quick look at the Facebook shows they’ve been to an amusement park, hiking and to the gym in the last 30 days.
Much to the surprise of plaintiffs, social media posts are admissible in court if they are indeed the ones creating the posts.
One case, Largent v. Reed, involves the use of Facebook. The plaintiff, “allege[d] serious and permanent physical and mental injuries, pain, and suffering.”
As bizarre as it may sound, the court documents seem to state, “During the deposition of Jennifer Largent, taken May 18, 2011, Defense counsel discovered that she has a Facebook profile, that she had used it regularly to play a game called FrontierVille, and that she last accessed it the night before the deposition.”
The defendant argued the need to access the Facebook profile to prove the plaintiff wasn’t as distressed as claimed — and got it! According to the same document, the plaintiff was ordered to “…turn over to Defense counsel her Facebook username email and password within 14 days of the date of this Order.”
2. Criminal cases (Commonwealth of Pennsylvania v. Mangel)
To some, putting private matters into the public domain is unthinkable. Others don’t share this reservation. There are people who put pictures and written statements that are not only admissible in court — but could even spawn criminal suits in the first place!
In the case of Commonwealth v. Mangel, Pennsylvania attempted to use what was thought to be the Facebook account of the defendant.
What was the potential evidence?
According to the court docs, “The Commonwealth also sought to introduce a Facebook screenshot wherein a photograph of purportedly bloody hands…”
To be clear, a judicial panel ended up not allowing the use of the social posts. However, it seems the reasoning was due to the fact that there was not enough proof the post was authored by the defendant.
Finding the Right Digital Footprint
If you only take one thing away, make it this: A single social post can make or break a case.
However, there are an increasing number of ways for this information to be either:
a.) Not accepted in your cases by the court
b.) Unable to be found with a simple search
A few potential obstacles for finding social data
- The Stored Communications Act (SCA) protects certain rights for online posts. While this information could be accessed, you’ll likely need a court order, similar to Largent v. Reed.
- Privacy settings within individual social platforms could make it difficult to see anything at all. This depends on what the individual has determined the public sees. Getting posts from heavy privacy settings may require some PI services.
- Finally, indirectly-linked accounts (for instance, a fake name or parody account). While proving ownership of these profiles is possible, it’s a gray area in the courtroom.
To overcome most of these obstacles, you need to know:
- The information collected belongs to the individual involved in your case
- Private information is protected, even when used in the court
- All data is accurate where it relates to your case (e.g. dates)
Tracers provides firms and individual lawyers with the search tools they need to find four critical types of data. One of those is the “digital footprint” discussed throughout this resource. Each report can be exported in a PDF, Excel or Word doc and potentially sensitive data can be blurred or masked.