Stop Avoiding Social Media — Use It to Win

Stop Avoiding Social Media — Use It to Win

People like to be in the know and nobody wants to be the last to hear of a great secret. All of which is to say, we are helping to spread the word about a must read book if you litigate or, as is often the case for in-house counsel, manage litigation: “Winning with Social Media: A Desktop Guide for Lawyers Using Social Media in Litigation and Trial“, written by social media law blogger Michelle Sherman. The topics Sherman discusses are imperative for in house counsel to understand so that they effectively question and make sure their outside counsel is on top of the most recent developments in using social media in litigation.

We have heard from plenty of lawyers that say they don’t tweet, like or hashtag, and we have no problem with that when it comes to what they want to put or not put on social media. However, we are here to tell you that you ignore social media at your peril in litigation and trial. Social media is today’s “smoking gun,” and you need to know how to find it, get it and use it. In writing the book, Sherman says, “I was able to confirm what I was seeing in practice. People of all ages and demographics are oversharing on social media, posting about their lives in the rosiest of terms, and providing lawyers with evidence that they can use to their clients’ advantage in cases ranging from employment disputes to IP actions.” One thing you can count on: social media will play a part in most of your cases in one way or another; whether you are ready for it or not. Sherman’s book will get you where you need to be, and with very little effort on your part. For the busy in-house counsel, her book has case citations, practical tips, real world-examples and key points at the end of every chapter.

In her book, Sherman sets out to make every lawyer comfortable with how to navigate the most popular social media sites, so they can dive deeper into getting the evidence they need. Sherman says, “trying to keep up with all of the social media sites out there would be nearly impossible, and then I realized I didn’t need to for my purposes. If lawyers look to the most popular sites, they will find what they need to get formal discovery of all the other sites that a party, witness, or expert is posting on.” Throwing in plenty of real world examples, and case law, Sherman covers the life of a legal action from the initial meeting with a client through trial. Sherman also foreshadows a day where lawyers may be risking sanctions or worse, if they don’t make social media part of their litigation strategy. Courts have less and less sympathy for lawyers claiming to be surprised by a client’s, or any other player in a particular case, use of social media. This notion also extends to jurors and what they’re saying publicly on social media. Lawyers need to be talking to their clients about preserving their social media footprint, not deleting or trying to clean it up.

At the same time, there is still a steep learning curve in the legal profession surrounding social media. Without assigning any bad intent, Sherman has found that many lawyers or their clients are not forthcoming with discoverable social media activity, so Sherman spends a good part of the book talking about ethical ways to conduct informal discovery. From there, she lays the groundwork for filing a motion to compel using evidence that was turned up in this informal discovery stage. Using these out of the box (but ethical) discovery methods, Sherman has found a party who used an alias on her Facebook account (and then swore in discovery responses that she did not have a social media account). In yet another case, Sherman found pages and pages of potentially relevant Facebook posts after formal discovery requests had not turned up anything.

Because social media is still relatively new to the courtroom, Sherman wrote her book with the intention of educating not only lawyers, but judges also. It is not just a collection of cases and string cites. Sherman provides practical tips and examples that readers can use for pretty much every aspect of a case, including serving process on a party, identifying a Doe defendant, authenticating evidence and overcoming hearsay objections.

Writing this book for the National Institute for Trial Advocacy (NITA) was a natural extension of what Sherman has been doing for the last 6 years. She launched a social media law blog at her former Am Law 100 firm in 2010, and has continued writing and speaking in some form on social media legal issues since then. A trial attorney who has practiced in civil and criminal courts, Sherman also has a passion for teaching that started with becoming a faculty member for NITA over 15 years ago and is now a second track career for her. One night a week, every school year, she leaves her full time job as an in house attorney for a large insurance company to make the 90 minute drive to the USC campus where she has been teaching communications law and ethics since 2012. Sherman is excited to take her passion for social media, teaching and trial practice, and make readers of her book more comfortable and confident about getting and using social media in litigation and trial.

This article was originally published by the Above the Law.

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