Social media is growing rapidly and having a large impact on the legal system. Attorneys need to learn how to use social media tools to demonstrate their expertise to clients and monitor jurors, who some have found violating bans on social media use during trials. However, using social media also presents risks, like inadvertently friending parties on Facebook, and courts have issued differing guidelines on what is appropriate for judges. Privacy and how to properly obtain digital evidence from sites like Facebook are also important issues for litigators to understand regarding social media.

1. Social Media
for Litigators
Ernie Svenson
Speaker: DigitalWorkflowCLE.com
&
Antigone Peyton
Founder & CEO, Cloudigy Law PLLC
ABATechShow 2012

2. Who are we?

3. Ernie Svenson
BigLaw - 20 yrs
Solo Practice - 5 yrs
How to create a paperless
Digital Signatures are easy
law practice easily ErnieTheAttorney.net
to make
PDFforLawyers.com
DigitalWorkflowCLE.com
Twitter @ErnieAttorney

4. Antigone Peyton
Biglaw - 10 years
Founded IP & tech boutique
All things incl. technology &
social media
Cloudigylaw.com
Blogger @ TechCocktail.com
@AntigonePeyton

5. Road Map
Why is social media growing?
What effect is it having?
Why should attorneys learn?
What effect on legal system?
What tools & services are helpful?

6. Social media is
HOT

7. -845 million users now
-By end of 2012, 1 billion
(1/7th of world
population)

8. Twitter
-50% “listeners”
-over 20 languages
-mainly used by older Twitter
adults
-largest social network in
Japan

10. The more you know,
the more dangerous
you are
(information is power)

11. -150 million members
60% non-US
-2 million + Company
Pages
-82 of 100 Fortune 100
companies use hiring
solutions

12. Demonstrating Your Expertise

13. Our
new
legal
System

14. Clients

15. Virginia is
for lovers ...

16. Facebook Apologies
First Amendment
Violation?
Facebook vent gone awry

17. @phonedog_noah
17,000 followers x £1.60/follower/month
Twitter Troubles

18. Facebook/Social Media Access for Executor?
Nebraska state bill
grants access to a
deceased person’s
account to the
executor

19. Bad Behavior
U.S. v. Cassidy, No. 8:11-cr-0091 (D. Md. 2011)
-Federal cyberstalking statute
-Posting messages on Twitter &
blogs
“Because this case involves First
Amendment issues, terms that were
in use by citizens when the Bill of
Rights was drafted may help in
understanding the legal context of
Blogs and Twitter.”

20. Jurors

21. facebook
jurors

22. Search jury duty
What’s happening?
Off to jury Duty
yall wanna make me be on the
jury? everybody goin to jail...GUILTY!
Jury Duty and my iPod
got some of the best sleep
just died...HELP!
in my life in jury duty...

23. probably should not be doing this.”
#legaltweets #donotarrestme
My fave part of juror selection was Home Profile Find People Settings Help Sign out
What’s people slowly remembered things
when happening?
that might make them biased: “Uh, I
Joe VentiLatte Name Joe VentiLatte
was shot once.” #legaltweets
Location Brooklyn, NY
The jury orientation video is unreal.
Bio I edit books, but
Starts off with hooded Europeans in a I also do other
forest: “In olden times, there was no things as well, if
justice....” you can believe
that.
85 188 6
following followers listed

24. Jurors on the Hot Seat
Texas man sentenced to 2 days
of community service
"friended" a plaintiff in a car-
wreck case
Source:WSJ article 03/06/12

25. Jurors on the Hot Seat
FL juror held in contempt of court
& sentenced to 3 days in jail
Used Facebook to "friend"
defendant in a personal-injury
case
Source:WSJ article 03/06/12

26. Jurors on the Hot Seat
Juror in a gang-beating case
May have to divulge Facebook records
to defense attorneys seeking to
overturn their clients’ 2010 convictions
Source:WSJ article 03/06/12

27. Jurors on the Hot Seat
Arkansas juror continued tweeting
even after trial judge questioned and
admonished him
On the day the jury returned death
sentence the juror tweeted at least 2X,
disclosed the verdict early
Source: WSJ article 03/06/12

28. Actions by 30 Federal Judges
Removed from jury 9
Cautioned only 8
Mistrial
Contempt
Fined
Other 7
Source: Federal Judicial Center

29. Judges: are jurors violating SM ban?
79%
“No way to know”
Source: Federal Judicial Center

30. Defense Tactics
Ask Court to require jurors to disclose
Twitter handles?
Try to enforce search and sharing
limitations to avoid a mistrial, throwing
out a conviction or an acquittal, or
repeated trial
Source:WSJ article 03/06/12

31. Judges

32. facebook
for judges?

33. facebook question
“ the fla. sup. ct. has forbidden
judges from having lawyer
friends on fb. reasoning it
implies a special relationship.
doing a talk wed. nt. on
topic. any thoughts?”

34. John: How can judges not be friends with
lawyers? Once a lawyer, always a lawyer.
Christine: What about state bar associations? That
also implies friendships & fraternization.
Docia: How can they dictate who your friends
will be (or not)?
Ron: The scrutiny of non Judicial conduct can
be problematic. Is a Judge now required
to recuse himself because a litigant is a
FB "friend". What if the Judge does not
personally know all of his FB "friends"?

35. FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion No. 2009-20
Whether a judge may add lawyers who may appear before the judge as
“friends” on a social networking site, and permit such lawyers to add
the judge as their “friend.”
Answer : No.
Date: November 17, 2009

36. OHIO SUPREME COURT
Judicial Ethics Advisory Committee
Opinion No. 2010-07
Whether a judge may add lawyers who may appear before the judge as
“friends” on a social networking site, and permit such lawyers to add
the judge as their “friend.”
Answer : Yes, provided....
Date: December 3, 2010

37. Privacy

38. Social Networking & Geo Location
http://blogs.wsj.com/wtk-mobile/ -- Article about apps transmitting
PII and location data

39. Harvesting
&
Listening
Tools

40. Practical Help

42. Facebook_Subpoena
—Will provide basic subscriber information, if valid
subpoena from California state ct, or Fed Ct.
—Will not provide user content, citing SCA
—Don’t expect to talk to anyone at Facebook by phone
—Their subpoena requests are handled by outside counsel

43. It’s a Cottage Industry . . .
• Over 50% of employers research applicants’ social media/Internet
footprint
• Monster.com
• comScore
• Pew Research Center
• Data mining/data hiding/reputation management

44. Advice

45. Food for Thought
• How can you search & identify relevant information?
• Is it possible to forensically collect?
• Should you monitor?
• What about your adversaries social media content?
• What does “delete” really mean?
• Can policies be your stopgap?