The Lawyer's Weekly: Social Media Postings Creating a Litigation 'Gold Mine'

BY SIMRAN BAKSHI, ASSOCIATE LAWYER

I was recently interviewed by Lawyer's Weekly correspondent Kim Arnott regarding the impact that social media can have in family law litigation.

Given the nature of issues presented in family law, it is really not all that surprising to see social media increasingly relied upon by the Courts as an important tool to better understand the conduct and lifestyle of the litigants involved.

To learn more about how social media is shaping our litigation system today, I would recommend reading this article; Social media postings creating a litigation 'gold mine'.

- Simran Bakshi, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

"CourtBerry Syndrome" and Why Some Jurors Can't Resist Tweeting

Trial judges routinely warn jurors to avoid  using social media and the internet to research or comment on matters before the court during trials.  Nonetheless, news reports of jurors who disregard these instructions seem to be increasingly frequent.

Such juror misconduct has potentially disastrous consequences for the administration of justice.  A December 2011 Arkansas appeal provides a ready illustration - see Death row inmate gets second trial due to Twitter-obsessed juror:

In a tweet referencing the trial, Franco wrote ”Choices to be made. Hearts to be broken…We each define the great line.” He also posted updates when each day of the trial started and complained about the coffee. In addition, Franco posted “It’s over” less than an hour before the jury’s verdict was read in court. According to Associate Justice Donald Corbin, Franco was warned during the trial that posting updates to Twitter was forbidden. Corbin stated ”More troubling is the fact that after being questioned about whether he had tweeted during the trial, Juror 2 continued to tweet during the trial.” The Supreme Court justices of Arkansas recently asked a panel to look into restricting the use of smartphones during future trials.

Villanova law professor, Louis J. Sirico, Jr,. offers a generational analysis at Legal Skills Prof Blog as to why some jurors seem unable to resist tweeting and googling during trials:

In November 2008, the Lord Chief Justice of Great Britain, Sir Igor Judge, sounded a warning about the generational shift occurring as web-savvy citizens accustomed to getting their information online entered the jury box. Noting the consequences of this shift for the system of trial by jury, the Lord Chief Justice observed, “If a generation is going to arrive in the jury box that is totally unused to sitting and listening but is using technology to gain the information it needs to form a judgment, that changes the whole orality tradition with which we are familiar.

If our brains are, indeed being rewired by the internet, as early clinical research seems to suggest, is compulsive juror mistweeting simply the cutting edge of a genuine change in our physiology that is naturally finding its way into our courtrooms?

Is crackberry syndrome mutating into courtberry syndrome?

And how can our courts address this?  

- Garry J. Wise, Toronto

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Video: Legal Ethics in an Age of Technology

Legal Ethics in an Age of Technology...

That sounds a wee bit lofty, no?

Some of you are probably thinking, “Ethics?  We're talking about Facebook and Twitter, here, right?” Well as you will see in this video, the more involved a legal professional gets in social media, the more likely it is that an ethical question might just fall into his or her lap...


This video was originally presented at a Law Society of Upper Canada Continuing Professional Development Webinar, "Ethical Considerations in the Age of Technology" on October 7, 2011.

Join us on November 21, 2011 for Round II of our panel discussion with Bob Tarantino, Mitch Kowalski, Omar Ha-Redeye and yours very truly.  Register here.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Courtney Love and the Trials of Twitter

PostMedia culture writer Misty Harris explores the pending, California defamation trial of rocker Courtney Love over explosive allegations made on Twitter. See Technological freedom comes with a price: Just ask Courtney Love.

The Canada.com article also includes my own comments.

Ultimately, social media has come of age, and with that age comes responsibility. Our courts are now defining where and when that responsibility arises.

Social media users should indeed be aware that our laws continue to apply in the virtual world.

With increasing regularity, courts are being asked to adjudicate lawsuits arising from questionable online behaviours. Time after time, we are seeing judges conclude that the same rules of law apply, whether we are online or in the realm of brick and mortar.

For example, see our posts highlighting recent Canadian rulings arising from defamatory comments on Facebook and on blogs:

• B.C. Ex-Spouse Awarded $40,000 For Defamatory Facebook, Internet Posts
• Blogging, Responsible Journalism and Damages for Libel

Ultimately, it will likely matter little that a defamatory comment has been made on Twitter, as opposed to the public square.

Social media is the new public square, and regardless of the outcome, the Love case - and the media attention it is receiving - will remind us all that the internet is no longer a "responsibility-free zone."

Trial of the Love case has been adjourned to February 8, 2011.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Social Media in 2010 – No Surprises, Just Evolution

The Scoop, JD Supra's legal marketing blog, has today published its annual year-end summation, What Surprised You In 2010? Perspectives from Legal Professionals.

Today's Scoop post contains excerpts from many, varied contributors to this annual legal thought-fest. The complete, extended commentaries can be downloaded here, in PDF and MS-Word formats.

Canada's representatives this year include Steve Matthews, Jordan Furlong, and myself. Thanks to Adrian Lurssen and the good folks at JD Supra for including my thoughts once again in 2010.

My contribution to the mix, 2010 – No Surprises, Just Evolution, is reproduced below.

- GJW

****

2010 – No Surprises, Just Evolution

There were no great surprises in 2010 for lawyers who’ve had their fingers on the pulse of the social media world - just a natural progression.

The once-radical thought that there is a bona fide professional use for social media in the legal profession has been mainstreamed and normalized. Lawyers’ participation online has exploded into an ever-increasing offering of blawgs, tweets, and social media updates.

In fact, as I suggested in an October 2010 post, Social Media and the Legal Profession: Where are We Today?, the primary challenge ahead is no longer about participation; rather, it’s about integrating our multi-platformed online presentations:

Once you have a website and blog, are on Facebook, LinkedIn, Twitter, YouTube, Digg, etc., how do you tie it all together - with the least amount of extra hands-on effort - into a cohesive, seamless and consistent presence that establishes a brand or identity that is both authentic and digestible for readers?

In a natural, logical evolution, the modern world continues to pull lawyers and our courts into this tech-centric 21st century.

Within the last year or so, courts in Canada, the UK, Australia and the USA have permitted journalists to live blog, text-message and tweet from the courtrooms. Canada’s Supreme Court has recognized that bloggers are afforded “responsible journalism” free-speech protections; similarly, bloggers have been held accountable for defamatory publications that have crossed the line.

In some cases, courts have authorized service of legal documents via Facebook. Facebook, itself, has responded to document-retention and electronic discovery requirements by introducing a Download Your Information feature, enabling retrieval and local storage of each user’s Facebook content. Privacy advocates won a series of public battles over the protection of private information on social media sites. Courts have ordered “virtual child visitation” via Skype. And, in Ohio, judges received a green light to “friend” lawyers on social media sites. In South Carolina, Florida and other jurisdictions, it is not so clear.

Looking ahead, this evolution will no doubt continue in 2011.

In the legal profession, greater attention will be focused on the ethical do’s and don’ts of lawyers’ social media participation. We will consider whether blawging should count toward lawyers’ mandated CLE requirements. And our courts and governments will struggle with (and attempt to draw defined lines in the sand) in this brave new world of instant communications, democratized access to publication tools, and blurred distinctions between the public and the private.

Finally. the emerging WikiLeaks debate – is it journalism or espionage? - is likely to be the spark at the center of a crucial, dramatic discussion ahead that will do much to define where we, as a society are heading, online and offline.

It will continue to be fascinating to watch the developments unravel in real time.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Prutschi on Jurors and Facebook

Slaw's Edward Prutschi, on the increasing prevalence of Facebook abuse by jurors around the globe:

Now I’ve felt somewhat humbled by having to make life-altering submissions before a panel of twelve of my client’s peers, but pleading my case to the entire internet? That’s an audience that could overwhelm even the savviest advocate.

Nicely said.

Read the whole post: Will Facebook Be the Downfall of the Jury System?

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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B.C. Ex-Spouse Awarded $40,000 For Defamatory Facebook, Internet Posts

Vancouver Sun reports on a British Columbia Supreme Court damages award against a former "life partner" over defamatory online postings during a bitter family law dispute:

"The reality is that Dr. [Patrick Michael] Nesbitt has taken his battle with [Wendy] Neufeld over custody and access far outside the ordinary confines of the Family Court litigation," B.C. Supreme Court Justice R. Crawford said in a recent ruling.

...Neufeld sued for defamation and breach of privacy after Nesbitt waged an online battle against her, making vicious comments about her and some friends through such avenues as Facebook and YouTube.

One online site referred to Neufeld as "mean," "weird" and "sneaky," in addition to more mean-spirited postings.

The court awarded Neufeld $40,000 in damages, finding that "Dr. Nesbitt engaged in reprehensible conduct."

The B.C. Supreme Court's ruling, which includes a good survey on the Canadian law of defamation, is here: Nesbitt v. Neufeld, 2010 BCSC 1605 (CanLII).

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Facebook, My Space and Pre-Sentencing Reports

From Law.com, a very thorough survey of the emerging importance of defendants' social media postings in sentencing dispositions by U.S. criminal courts:

Embarrassing Facebook photos and regrettable MySpace statements are starting to become commonplace in pre-sentencing reports and disposition hearings. At the same time, defendants and their advocates are acknowledging the power of social media as a tool to generate mitigating evidence.

...How deeply must defense attorneys delve into social media in representing their clients at sentencing? The U.S. Supreme Court in Townsend v. Burke, 334 U.S. 736, 741 (1948), cautioned that defendants ought to be guarded from punishments based on false or misleading information. It would seem that this injunction compels counsel to challenge sentencing information drawn from the social centers of cyberspace.

Due process must temper the unchecked use of aggravating social media evidence at sentencing, as well as arraignment and other proceedings. At the same time, these online forums are opening unprecedented opportunities for developing mitigating evidence that can provide courts with a fair picture of the person appearing for sentence.

Read the article by Ken Strutin, director of legal information services at the New York State Defenders Association: The Role of Social Media in Sentencing Advocacy.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Introducing OMG! Law Talk

Well, it's finally OMG! Monday and I'm very happy to be starting the week off with the launch of OMG! Law Talk.

OMG! is our original, 'short video' series featuring informal, but often emphatic conversations on legal issues, politics, technology and social media. We hope it will be of interest to our readers in and out of the legal community.

I've been collaborating on this series with law bloggers Michael Carabash of Dynamic Lawyers and Omar Ha-Redeye of Slaw, Law is Cool and OmarHa-Redye.com. OMG! will pretty much mirror the kinds of discussions the three of us have when we get together and the cameras aren't rolling.

Come be a fly on the wall. We'll have a new episode of OMG! each Monday on Wise Law Blog. As the series progresses, things begin to heat up.

Our inaugural episode features lively discussions on: Lawyers Who Blog; Managing the Public vs. the Private; Augmenting the Public with the Personal; Rants and Bones to Pick; and Search Engine Optimization Malpractice.

So here we go with Episode Number 1 - OMG! Law Talk is ready to sail:

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Learning the 'Power of The Internet' (The Hard Way)

CBC reports on David Fraser, one of three hunters whose illegal duck-shooting escapades garnered You Tube fame - and a $5,000.00 fine in a Saskatchewan court, after pleading guilty to hunting law violations:

Fraser said he also learned a lot about the power of the internet and about exercising extra caution when posting to social networking sites.

"Because anyone that puts anything on the internet, you're exposing yourselves and you can get yourself into trouble like we did," Fraser said. "It's embarrassing, what I did, and I'm very ashamed of the way I acted."

When asked by a reporter whether he thought the matter had been blown out of proportion, Fraser responded, "Absolutely."

- Garry J. Wise, Toronto

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