Digital cameras, smartphones and social media sites have transformed our ability to document our lives and share them with our family, friends, and the whole world.

It’s amazing how we are able to connect and share news, stories, opinions, photos and video by posting on Facebook, Twitter, YouTube, etc., almost instantly.

But, for trial lawyers, all of this spontaneous, and sometimes thoughtless, posting makes us nervous.  If our clients have legal cases pending in court, it’s possible that these posts could be discovered by the opposition and become evidence in court.  The two types of cases where social media postings are particularly problematic are Family Law (Divorce and Child Custody) and Personal Injury cases.

In a Family Law case, imagine a parent posting photos or video of irresponsible activity like photos of wild partying or even illegal drug use.  Think about how a disgruntled Family Law litigant could be tempted to post nasty comments about the other spouse/parent, attorney, or even the judge.  In a Personal Injury case, imagine that someone claiming to be injured and disabled posts photos or video of participation in a tackle football game or bungee jumping.

Pennsylvania law is unclear as to what social media the other side can subpoena or introduce into evidence in a court case.  Some judges have allowed Facebook, Twitter and YouTube postings to be discovered and used in court and others have not.  Because of this uncertainty, lawyers, insurance companies and private investigators often search for social media that could help their case and hurt yours.  If something damaging is found, it might be used against you.

Attorneys almost universally agree that, if you have a case in court, social media participation is a bad idea.  Even if you are an honest and conservative poster, your communications can be misinterpreted and others can tag you in photos or post about you.  Even innocent posts can sometimes be twisted to hurt your case.

Here are my social media tips for people involved in litigation:

  1. If you can stand it – shut down your Facebook, Twitter, YouTube, etc. sites until the case is over.
  2. If you can’t live without social media, follow these guidelines:
  • Use Privacy Settings to limit Public Access.
  • Never accept Friend Invitations from people you don’t know – they might be from the other side of your case.
  • Assume that all posts, photos and video could become evidence in your case and blown up on a big screen in open court.
  • Never post about the case, the other side, the other attorney or the judge.
  • Do not post about irresponsible activity.
  • Never post things that are inconsistent with your legal claims or court testimony.

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