Social Mediafor Litigators

Ernie SvensonSpeaker: DigitalWorkflowCLE.com

& Antigone Peyton

Founder & CEO, Cloudigy Law PLLC

ABATechShow 2012

Who are we?

Ernie SvensonBigLaw - 20 yrsSolo Practice - 5 yrsErnieTheAttorney.netPDFforLawyers.comDigitalWorkflowCLE.com@ErnieAttorney

Digital Signatures are easy to make

How to create a paperlesslaw practice easily

Twitter

Antigone PeytonBiglaw - 10 years Founded IP & tech boutiqueAll things incl. technology & social mediaCloudigylaw.comBlogger @ TechCocktail.com@AntigonePeyton

Why is social media growing?

What effect is it having?

Why should attorneys learn?

What effect on legal system?

What tools & services are helpful?

Road Map

Social media is

HOT

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

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

TwitterTwitter

The more you know, the more dangerous

you are(information is power)

-150 million members60% non-US-2 million + Company Pages-82 of 100 Fortune 100 companies use hiring solutions

Demonstrating Your Expertise

System

Ournewlegal

Clients

Virginia is for lovers ...

Facebook Apologies

First Amendment Violation?

Facebook vent gone awry

@phonedog_noah

17,000 followers x £1.60/follower/month

Twitter Troubles

Facebook/Social Media Access for Executor?

Nebraska state bill grants access to a deceased person’s

account to the executor

Bad BehaviorU.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.”

Jurors

facebookjurors

What’s happening?

Search jury duty

Off to jury Duty

yall wanna make me be on thejury? everybody goin to jail...GUILTY!

got some of the best sleepin my life in jury duty...

Jury Duty and my iPodjust died...HELP!

My fave part of juror selection was when people slowly remembered things that might make them biased: “Uh, I was shot once.” #legaltweets

The jury orientation video is unreal. Starts off with hooded Europeans in a forest: “In olden times, there was no justice....”

Wow--it just occurred to me that I probably should not be doing this.” #legaltweets #donotarrestme

What’s happening?

Home Profile Find People Settings Help Sign out

NameLocation

Bio

Joe VentiLatteBrooklyn, NY

I edit books, butI also do otherthings as well, if you can believe that.

85 188 6

following followers listed

Joe VentiLatte

Texas man sentenced to 2 days of community service "friended" a plaintiff in a car-wreck case

Source: WSJ article 03/06/12

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

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

Jurors on the Hot Seat

Arkansas juror continued tweeting even after trial judge questioned and admonished himOn the day the jury returned death sentence the juror tweeted at least 2X, disclosed the verdict early

Source: WSJ article 03/06/12

Jurors on the Hot Seat

Removed from jury

Cautioned only

Mistrial

Contempt

Fined

Other 7

8

9

Actions by 30 Federal Judges

Source: Federal Judicial Center

79%“No way to know”

Judges: are jurors violating SM ban?

Source: Federal Judicial Center

Defense Tactics

Source: WSJ article 03/06/12

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

Judges

facebookfor judges?

facebookthe 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?”

question“

How can judges not be friends with lawyers? Once a lawyer, always a lawyer.

John:

Christine: What about state bar associations? That also implies friendships & fraternization.

How can they dictate who your friends will be (or not)?

Docia:

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"?

Ron:

FLORIDA SUPREME COURTJudicial Ethics Advisory Committee

Opinion No. 2009-20

Date: November 17, 2009

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.:

OHIO SUPREME COURTJudicial Ethics Advisory Committee

Opinion No. 2010-07

Date: December 3, 2010

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....:

Privacy

Social Networking & Geo Location

http://blogs.wsj.com/wtk-mobile/ -- Article about apps transmitting PII and location data

Harvesting &

Listening Tools

Practical Help

_SubpoenaFacebook—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

• Over 50% of employers research applicants’ social media/Internet footprint

• Monster.com

• comScore

• Pew Research Center

• Data mining/data hiding/reputation management

It’s a Cottage Industry . . .

Advice

• 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?

Food for Thought