Not only is social media a valuable marketing tool, but it also has key implications within the legal process. Find out more about the ethics of using social media and technology in your modern practice.

1. Clio Cloud Conference 2014
Legal Process using Social Media: Evidence, Jury Tampering, and the
Service of Documents
SEPTEMBER 22 – 23, 2014 · CHICAGO, ILLINOIS

2. Clio Cloud Conference 2014 #ClioCloud9

3. Effect of Internet on Legal
Communications
• Easy access to Internet results in outsourcing of
basic duties on a global scale
• Work can become easier and more convenient, as
communication requires less time
• Increased quality of service when time saved from
correspondence
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4. Social Media for Marketing
• low cost of entry, low level of skill
• social media is one of the major vehicles for communication for many small and
mid size firms
• some jurisdictions regulate content of this marketing
• generally cannot be misleading
• some restrict aggressive tactics or emotional pleas
• concerns over quality control (are we cheapening the brand?)
• but social media is so much more for lawyers…
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5. Social Media as Evidence
• duty to preserve evidence; duty belongs to the court
• destruction of evidence negatively affects the judicial process by obstructing the
administration of justice and ability the truth
• but what is the quality of this evidence? who authenticates it?
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6. Social Media as Evidence
• Advent of digital media and Electronically Stored Information (ESI) complicates
matters
• Sedona Conference acknowledged the world is drastically different between the
paper world and the digital environment we are entering
• Although historic rules clearly stated not to destroy physical evidence, it’s
relatively easy to manipulate and delete ESI
• ESI provides a plethora of evidence, if maintained adequately
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7. Social Media as Evidence
• Spoliation elements regarding ESI:
Did the evidence exist?
Was there a duty to preserve the evidence?
Was the evidence crucial to the opposing party’s case or defence?
• Is there always an obligation to maintain evidence even before it becomes
evidence?
• Judiciary struggles with emerging technology; Reluctance to clarify pre-litigation
preservation duty
•
• Rule 16, Electronics Communications Privacy Act, 1986 allows data requests
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8. Social Media as Evidence
• Social media can be used to “stage” evidence (scheduled tweets or posts)
• Create fake alibis or narratives (but consider geolocation, metadata)
• Zilla van den Born’s Fake Trip to SE Asia
• @InternalRevenueSelfies
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9. Clio Cloud Conference 2014 #ClioCloud9

10. Clio Cloud Conference 2014 #ClioCloud9

11. Social Media as Evidence
• Cloud computing a platform that could serve as an example of available evidence
• Data is available anytime, anywhere, but could also be manipulated or deleted
without a trace
• Who would be responsible if data is interfered with?
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12. Social Media as Evidence
• client management poses a particular concern to many lawyers
• absolute bans for using social media unlikely to work
• greater emphasis on education of proper and responsible use
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13. Clio Cloud Conference 2014 #ClioCloud9

14. Social Media as Evidence
• forensics may require specialists in hardware, software, networking, databases,
and multimedia
• subpoenas and orders for digital format evidence still developing
• complexities for the jury; what if they don’t “get” it
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15. Jury Tampering by Social
Media
• Prejudice to jury is along-standing concern, before social media; impartiality of
potential jurors in questions when they have access to outside sources of
information
• Information today is more easily accessible, and the average social media user
already person filters vast amounts of data daily
• Prejudice becomes difficult to control
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16. Jury Tampering by Social
Media
• Ways to prevent potential bias of the juror could include:
Banning electronic devices from the courthouses
Blocking Internet access
Educating the jury as to the reasons for these limitations
• Cannot control what jurors read prior to the trial
• Can you investigate your jury pool using social media? If so, how?
• Increase in “intelligent” research in jury selection
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17. Jury Tampering by Social
Media
• Jury issues go beyond prejudice, and extend to attention spans and listening
styles
• Contemporary jurors who use social media may consider trials too slow and and
rigid
• May miss or ignore arguments regarding minute details in evidence
• Do litigators need to adjust their presentation style for jury trials? Will judges
resist this?
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18. Service of Documents
through Social Media
• Some civil courts allow the service of process on a
defendant’s social media page
• Usually only when traditional service is unavailable or
ineffective
• Little consideration over verification of social media
accounts (“spoof” accounts)
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19. Service of Documents
through Social Media
• Courts have enhanced access to justice and transparency by distributing
decisions online, increasing filing information online
• Will use of social media by the courts bolster its image, or cheapen it?
• Social media used to build trust with the public
• Opens courts up to entirely different level of scrutiny and criticism
• What is the role of lawyers?
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20. Thank you for listening!
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