How Attorneys Can Use Social Media in Due Diligence
In today’s world, a lot of living is done online
People share everything from their breakfast to their love life on social media, and the collection and curation of that data can result in a fairly accurate profile regarding who a person is, what they like, where they go, when they went, and even provide insight into the lives and involvement of their friends and family.
Almost everyone these days has some sort of electronic footprint, and this trail of willingly offered and easily available information is a valuable research tool, particularly for those in the legal industry.
When it comes to proving guilt or innocence, social media can corroborate alibis, verify evidence, cross reference testimony, and vet potential jurors, witnesses, and clients.
A new use for the search bar
According to the American Bar Association’s 2017 Legal Technology Survey, 21 percent of lawyers sift through social media for evidence during case investigations. This number is expected to grow exponentially as court rulings establish precedents around the authentication and admissibility of online interactions.
The evolution of technology is assisting attorneys in the endeavor of accessing online activity, with industry-targeted software that mines social media data and makes analyses and predictions based on its findings. The resulting information can streamline the jury selection process by identifying potential bias or help to assess the veracity of evidence or testimony.
A legal proceeding’s successful outcome often comes down to who has the right information at the right time, and social media can be your best source for finding it.
Online activity as evidence
Social media accounts reflect who we are and can provide a better understanding of a person or a situation when used in legal proceedings.
Online activity had an impact on the following cases:
- Personal Injury Claim: Opposing counsel checked the Myspace and Facebook pages of a plaintiff who was suing Weis Markets for damages over a leg injury that was allegedly impairing his health and ability to enjoy life. Photographs posted on social media proved that the employee rode and performed stunts on his motorcycle, activity that was at odds with his claims of injury. The pictures also showed the employee wearing shorts, which was significant because he had claimed in his deposition that he was too embarrassed to do so after the accident. Visible scarring in the photographs confirmed that they were taken after the injury. Ultimately, the plaintiff’s posts disproved his personal injury claim.
- Proof of Alibi: After spending two weeks in jail for a mugging in Brooklyn, the father of a teenage defendant discovered a Facebook status update his son had made one minute before the crime. The post was written from their Harlem apartment, which was 12 miles away from the scene of the mugging. The boy’s father contacted the district attorney with the evidence, who then submitted a subpoena to Facebook to verify the location the status was posted. The time stamp and location absolved the teenager and charges were dropped.
- Alimony Evidence: A man sought alimony payments from his ex-wife, claiming unemployment. However, his Facebook page told another story – with posts bragging about owning his own business and albums showing off trips to Las Vegas, South America, and Sea World with his new girlfriend. The ex-wife’s attorney used the posts as evidence to discredit him, and he was denied support.
- Custody Dispute: Facebook posts damaged the credibility of a father seeking guardianship during a custody case. Crude status updates and photos demonstrated a disregard for the best interest of the child and a lack of consideration for the mother, who was eventually granted guardianship.
Send and submit
According to Jennifer Ellis of Lowenthal & Abrams PC, and Michael Maschke of Sensei Enterprises, Inc., consider the following when introducing social media as evidence: “Is it relevant? Is it more probative than prejudicial? Is there a hearsay problem or exception? And, is it authentic?” Those questions reference Federal Rules 401-402, 403, and 901-902 and are an appropriate starting point when determining admissibility.
A savvy attorney knows the value of utilizing technology to maximize productivity and recognizes the importance of being fully prepared before trial. Social media is an effective tool for performing due diligence and might end up acting as the missing piece of your client’s puzzle.
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