Social Media: How to ruin your case in under 60 seconds

By Adrienne Griffis

“Dance like no one is watching; email like it may one day be read aloud in a deposition.” This quote has appeared so many times in so many sources that I cannot accurately access to whom I should give credit. However it originated, this advice applies to all types of electronic communication—not just email. Electronic communication often leads to regret because it can be completed in too short a period of time to allow for appropriate reflection. If our parents or grandparents wanted to send angry correspondence to someone, they at least had the opportunity to reconsider and take the letter out of the mailbox. These days, the damage can be done as quickly as you can press “reply all.”    

In my opinion, social media is the most dangerous form of electronic communication during litigation. Unlike an email, statements on social media have the potential to be seen by hundreds or even thousands of people, all of whom can download and preserve your statements even after you come to your senses and delete the ill-advised content. For this reason, I know many attorneys who advise, or even require, their clients to disable all of their social media accounts while involved in litigation.[1] Although complete social media abstinence is not something I personally require of my clients, it is easy to see the wisdom in this advice. One need only look at Donald Trump’s Twitter account to see why it is important to think before you type, especially as it relates to pending court cases and matters of national security.

The most obvious and completely avoidable way to negatively impact your case, and your life, is to disclose criminal or prohibited activity on social media. Documenting your commission of a crime on social media clearly has the potential for extreme consequences—don’t end up like these people. However, you do not have to actually confess to criminal activity on social media to inadvertently incriminate yourself or raise suspicion about your activities. For example, if you are involved in a child custody case, you should not upload a video of yourself taking shots right before you drive to pick up your children. If you are subject to an order of protection, don’t “check in” on Facebook at a location near the protected party’s home or place of employment. If you are subject to court‑ordered alcohol restrictions, don’t post a picture of yourself in a bar. Although the scenarios described above seem ridiculously preventable, you would be surprised how often these types of incidents occur.

A less obvious but equally detrimental way to negatively impact your case is to talk about it on social media. Whether you are commenting on the facts of your case or about one of the parties, this can cause problems. For obvious reasons, a personal injury plaintiff should not brag about his or her upcoming “payday” on social media. A party involved in a family law case should not post negative comments about the adverse party on social media, particularly when the case pertains to child custody. Most judges prohibit parents from making negative statements about the other parent that could be viewed by the children; because social media sites are public forums, they qualify as accessible to children. In one of my cases, the judge fined a parent for calling her ex‑husband a four-letter word on Facebook even though their child never saw the comment.

Finally, be aware that social media evidence does not have to originate from you to be damaging. Make sure you take steps to avoid others from publishing content that could negatively impact you. For example, be diligent about monitoring the comments on your Instagram, ensure that you have the opportunity to review and approve Facebook posts by others to your page, and, for Pete’s sake, stop sending nude photos on Snapchat. The scandalous message may disappear in a few seconds but, as with any other social media mistake, a screenshot taken by a viewer will not. Exercise caution to prevent a 60-second mistake from impacting the next 60 years of your life.   

 

[1]    Please note that I said “disable”—not delete. If you are currently involved in litigation, you should not delete any type of electronic communication because, by doing so, you may face sanctions from the Court for destruction of evidence. If you have questions about which information you are required to preserve, you should contact your attorney.


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