A DISCUSSION OF LAW AND JOURNALISM

Unlike Trix, Social Media Isn’t Just for Kids…

By Chris Cotter

Social media is the new black. As of September, Facebook boasted 88.3 million unique US users (a surprising 38% of whom are over 35). From February 2008 through February 2009, Twitter’s user base grew  a whopping 1382%. And if you’ve spent more than ten minutes on the web, you already know that there’s a blog for just about everything you can imagine. What’s funny is, we Americans would sooner give a kidney than our “sensitive” personal information. Yet, many of us freely post photos, videos and comments all over social media platforms, just as freely as we shake hands. Every day, millions of Americans delightedly navigate websites of great social and political import, blissfully unaware of the digital autobiography they are leaving behind. But while they may not be cognizant of the value of their interactions with the web, some very powerful people are, and as an attorney, you should be too.

DecisionQuest, Inc. provides a number of litigation support services to law firms, one of which is jury research. On November 17, one of DecisionQuest’s “social media experts,” Christine Martin came to speak at New York Law School about how social media research can help during the jury selection phase of litigation.

Martin is part Sherlock Holmes, part Sigmund Freud (sadly, the only psychologist I could think of). What she does is “track social interactions and perceptions online.” For those of you who aren’t fluent in marketing-speak, this roughly translates to hanging out on blogs, newspaper websites, Facebook, Twitter and more, in order to study peoples’ opinions of whatever controversy is at issue in the case on which she is consulting. She identifies what’s being said on Twitter or in the comments of relevant articles and blog posts, and then uses psychological principles to gauge the sentiment of these statements. Martin says this kind of information can be very valuable not only in selecting jurors, but also in selecting venues. If she notes an overwhelming amount of negative sentiment about a case, she will inform her client, who can then file for a change of venue.

To give you an example of how her work manifests in reality, Martin described a situation in which she was consulting on a case for the defendant, and her client suspected the other side of jury tampering. So she and her team took to the internet tubes. They noted a peculiar comment on a local newspaper website, divulging the details of a prior settlement that no one would have known unless they were acquainted with one of the plaintiffs. Martin then searched for the commenter by name on Facebook, and while she couldn’t see his full profile, because it was private, she could see a small sampling of his friends, two of whom were in fact the plaintiffs in the case.

But social media isn’t simply useful for things like jury research. It can also be used as an alibi. Just ask Rodney Bradford.

At approximately 11:49 AM on October 17, Rodney Bradford updated his Facebook status with an interesting message – he wanted to know where his pancakes were (sidenote: don’t ever come between a man and his pancakes). Around the same time, a robbery took place in Brooklyn, NY for which Bradford was ultimately arrested. Luckily for him, Bradford had great, creative defense counsel in Robert Reuland. Reuland submitted Bradford’s status message as his alibi, the Brooklyn DA on the case subpoenaed Facebook and sure enough, their records showed that Bradford’s status message had been updated from his father’s house in Harlem. The Brooklyn DA dropped the charges against him.

Of course, social media can be a double-edged sword. For every Rodney Bradford, there are countless others who post incriminating photos, videos and statements that would be more suited for their diaries than open public forums on which users are encouraged to gather information about each other.

Unlike in the offline world, in the Facebook world, many people are willing to become “friends” with others, regardless of whether they have actually ever met in person, or whether they even know anything about their new “friend.” Indeed, there have been cases where clients have accepted friend requests from virtual strangers. And this is fine, provided the client has not uploaded any incriminating photos or videos or posted any personal details relevant to his or her case. But either way, as an attorney, you should know what kind of information your clients are providing. This way, you can let them know if their pictures or comments could be detrimental to their case.

The sum total of all of this is that today, understanding social media is about as important as knowing how to tie your shoes. After all, soon enough, people will know how to deal with both by the age of 5. Blogs, YouTube, Facebook and Twitter so pervade our everyday lives that there can be great value in the interactions people have on them – whether that information is used inside or outside the courtroom.

Plus, where else but Facebook can you become a fan of “not being on fire?” If that isn’t reason enough to start taking social media seriously, I don’t know what is.

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