By Dr. Ken Broda-Bahm:
It will not go down as one of the doctor's smartest Facebook updates. Returning to work at Wales General Hospital last December, Dr. Brendan O'Riordan added a note on his status: "Back and causing chaos," he wrote, "Been in theatre this week slaughtering the innocent." That stab at humor is not so smooth for a surgeon in any context, but the statement was made all the more awkward by subsequent events: Just a year later, Dr. O'Riordan would be the subject of a hospital inquiry for allegedly causing the death of a patient during surgery. Of course, the Facebook post was found and published in the London Daily Mail. Unlike patients and professional reputations, content on the internet lives forever.
Most witnesses and parties are probably able to avoid that kind of careless notoriety, but the number of targets and the nature of public information itself has changed dramatically in just the last few years. With close to 800 million Facebook users worldwide, the online community now includes parties, witnesses, attorneys, judges, jurors, arbitrators, and mediators. And beyond Facebook, there is also Twitter, LinkedIn, Flickr, YouTube, SocialCam - and it seems to me - about a dozen hot new trends every day. Put all of these sources together and you have, for most of us, a "public persona" that is potentially available to those who wish us less than the best in litigation. This post takes a look at some research and experience on the ways this persona can influence litigation, and ends with some concrete recommendations on keeping your public persona in check.
It seems likely that parties close to the litigation process have always shared too much. What has changed is that much of that oversharing is now easily available. It is as if millions of barbershop and back porch conversations are being transcribed and placed on a worldwide instant distribution network. The traditional playing field has expanded as it becomes easier to access the lives of parties, experts, and adversaries that you once knew only through the formal process of discovery.
Recently, for example, I was working for a doctor who had been sued for malpractice. When I first took in the case, I did something that her own attorneys had not yet thought to do: I Googled her name. What came up wasn't nearly as bad as the comments from the Welsh doctor, but it was content that could still matter in trial: A fully public Facebook profile that showed the doctor with her happy family vacationing in some of the most enviable spots all over the world. That's not uncommon content, but imagine the juror who sets aside an instruction and lets his fingers wander the keyboard just a bit: The vacations looked pretty lavish, but more than that, they included a fully-intact family, which the plaintiffs no longer had. No, that probably wouldn't turn the case, and yes, most jurors would follow the instructions and not look at it. But why take the chance, when it is easy enough to make your profile visible to friends only?
Of course, it has become a pretty constant refrain to urge attention to online privacy. Despite that, the anecdotes of unwise disclosures continue to come in. One reason is that many people don't live with the constant expectation of litigation. Another reason is that we tend to have false expectations of privacy that apply to our online activities. When we are at our computers, it can feel very solitary, even though the world is just a click away.
And it does turn out that negative information in your public persona matters. A recent study (Weathington & Bechtel, 2012) compared job applicants evaluated on the basis of resumes only, to job applicants with resumes plus visible social networking site profiles (which in this case pointed to the applicant's gambling and alcohol consumption). No surprises here, the negative social media information led to significantly lower evaluations.
Limit Your Exposure
Research, as well as social media experience, tends to confirm the obvious: Stupid disclosures can lead to harmful results. But even with this truism widely acknowledged, litigators should still take an extra moment to make sure that you and your witnesses are not hurting yourselves in the social media world. Three bits of advice.
1. Think Before You Share. This should be self-evident, but it can still escape notice by parties. When I've used examples like the surgeon referred to in the introduction, the response is often some version of "really, they can look at that?" Yes, they can. It may not be admissible, but that won't necessarily stop a juror or an adversary from making a judgment based on what they learn. In the case of the surgeon, the plaintiffs' family made a public statement about the Facebook post. Make sure your witnesses and everyone else near the case knows to keep an eye on their public information. It is also a wise idea for attorneys to run a routine social media check on their own witnesses, so if the opposing trial team or the jury goes looking, you know what they'll find.
2. Use All Available Privacy Settings. Social media sites are in the information business. They make money, not by charging admission, but by bundling personal information together and selling that information to those who want to market or advertise based on it. Given that goal, most social media sites have an interest in members maximizing rather than minimizing their exposure. So, "don't rely on default settings" is a firm rule. The sites don't always make it easy, but they do generally include ways to limit who sees how much of your information. There are experts who know much more than I about how to safeguard your online persona (like here, here and here). Take the time to understand that information.
3. But Don't Change Anything Covered By Discovery. Of course, all this good advice can be taken too far. Last year, a Virginia judge sanctioned a lawyer and his client $722,000 for removing Facebook evidence. The client - a plaintiff in a wrongful death suit who won $10 million over the death of his wife - removed a photo of himself holding a beer and wearing a shirt that read "I [heart] hot moms!" The smoking gun, apparently, was an email from the lawyer's assistant that read, "We do not want blow-ups of other pics at trial, so please, please clean up your Facebook and MySpace." So my advice in this post, as in all posts, applies only where it doesn't make a judge angry.
Thinking back to the Enron case, those who followed the trial might remember that Jeff Skillings had his jury consultant outed while he was on the stand, with the prosecutor then turning to that consultant's public online writings, pulling them up on the screen for the jurors to see. There is a point there for me: As a consultant who is also a blogger, I'm acutely aware that as I write I'm contributing to a public persona. That isn't a bad thing, it just means that I never post anything that I wouldn't want to be broadcast far and wide to friends and enemies alike. That isn't a chilling effect.The other way to look at it? Quality control!
Other Posts on Social Media:
- Best Trial Idea of 2011: Apply "Social Listening" To Your Case
- Parties, Witnesses and Jurors: Don’t Be Afraid to Meet Them Face to Face(book)
- Beware of the Jury's "Filter Bubble"
- Conduct a Social Media Analysis on Your Potential Jurors (But Beware of False Expectations of Privacy)
Weathington, B.L., & Bechtel, A.R. (2012). Alternative Sources of Information and the Selection Decision Making Process. Institute of Behavioral and Applied Management: http://www.ibam.com/pubs/jbam/articles/vol13/no2/Weathington_Article_2.pdf
Image Credit: redtimmy, Flickr Creative Commons