One of the interesting changes which has occurred in recent years in the practice of law is the widespread use of social media. There is probably no area of the law which is completely untouched by the advent of social media and the tendency of people on social media to broadcast many, and in some cases all, aspects of their private lives to the public. For a trial lawyer such as myself, this has opened up many opportunities and has created many problems.
We all know from television that any time the police arrest somebody and give the Miranda Warnings, they will say “anything you say can and will be used against you in a court of law”. As a matter of constitutional law, the police must warn criminal suspects of this fact. However, it is not merely a fact in the criminal context, but in any context where you may find yourself in court. As such, no matter what kind of a case you may have, be it a car accident, an immigration matter, a bankruptcy case, a divorce, a criminal matter or almost anything else that you can think of, anything you say can and will be used against you. This is especially true when what you say is said on Facebook or some other social media platform to which the public has access. If your friends have access, then the government has access; the lawyer for the other side has access; the insurance companies have access, and all of your enemies or adversaries have access. What is more, all of these various groups are likely to interpret what you say in ways very different from what you intended. What is more, your social media posts may be used to spin a narrative that is quite the opposite from what you may intend.
Since I do not do messy child custody fights, I will not be blogging about them. Instead I will use the example of social media and child custody. Since many of my Facebook friends are also current and former clients, as opposed to professional colleagues, I have a pretty good understanding of what the public posts on Facebook, and I have a few Facebook friends who spend an inordinate amount of time talking about what jerks the fathers of their children are. They can be quite vicious in the attacks upon their baby daddies. Were I representing them in their fights with their exes, I would tell them to cut it out. They generally cannot use their own posts in court. For example, if the woman is posting that the father has once again missed his scheduled visit with his child, and that the child is upset about it, that is, general speaking, something that she cannot use as evidence against the father in court. Perhaps it helps her to keep a record that she can then go in and testify about, but she can accomplish the same thing by keeping a visit diary. On the other hand, everything that she posts can be used by the father in court, if he so chooses. What happens, quite commonly, is that the noncustodial parent, usually the father, will come to court and complain that the custodial parent, usually the mother, is trying to estrange the children from the noncustodial parent. Basically, mom is trying to turn the kids against dad. What better proof of mom’s hostility towards dad than five-hundred often profanity laden posts on Facebook or elsewhere talking about how awful a person dad is. This becomes especially true if the mother and child are themselves Facebook friends. However, unless the child is very small, there is no reason to believe that the child is not accessing the mother’s posts. More to the point, there is no reason to believe that the mother is talking to her children any differently than the mother is talking to everyone in cyberspace. What is more, there is now an argument to made that it is in the best interest of the child that the child be removed from the hostile and hateful environment that the mother is providing. Suddenly an absentee dad who has neglected and abandoned his children has an argument for why he might be the more suitable custodial parent, and certainly has an excuse for why he has not been there for the kids.
Similar problems exist quite frequently in the area of personal injury and social media, and I will blog about that specifically. That blog can be read here. Another problem that can come up in social media is that sometimes people try to project an image that may or may not be one-hundred percent accurate. When I blog about social media and bankruptcy and taxes, I will touch upon this issue in more detail. The basic idea is that every time you are in court, you need to be truthful about what is really going. If you have gone on social media to try to project a different image, this could be problematic. Going back to the family law context, if you are telling the court that because the deadbeat dad has not paid his child support, you cannot afford shoes for the children, but you are posting on Facebook all of these parties, vacations, restaurant meals and other more glamorous sorts of events, then there can be a problem.
Finally, sometimes the absence of material on Facebook and social media can be a problem. First of all, if you are not somebody who is putting their whole life on social media, then the fact that you have left aspects of your life off is not an issue at all. Sometimes clients come into my office and I will ask if they have a Facebook page, and I will check their Facebook page to check if it is consistent with the story that they are telling me. However, if my client tells me that they have no Facebook page then this is simply not a concern. Similarly, if I go to their Facebook page and they put up three posts in the last twelve months, then unless one of those three posts has something to do with my case, their Facebook posting is unimportant. However, if you are on Facebook ten times a day reporting to the world every detail of your life, then you need a pretty good reason for why there is nothing on Facebook that relates to whatever your case is about. It is possible to have a good excuse. Again, looking at the family law context, it is perfectly reasonable to say that you will talk about the details of your life on social media, but your children are simply off limits. In fact, that is a pretty good line to take. As such, it becomes consistent to argue that your children are the most important thing in the world to you even though they are essentially unmentioned in your five-hundred Facebook posts over the last couple of years. However, there are other times when that simply does not work. The absence of posts will be a major issue in my blog post about Facebook and Immigration. The big issue there, of course, is in the area of Sponsoring Husbands, Wives, and Children.
Clearly, if you are telling the government that you are madly in love with somebody and want to spend the rest of your life with someone, but you only mention them twice in your five-hundred posts, that is a problem.
So as you can see, social media is something of which people who are involved in litigation and other legal matters need to be aware. It is absolutely the case that lawyers look at the Facebook pages of both their clients and their adversaries. It is absolutely the case that insurance companies look at the social media of people who are making claims. The immigration service, or the consular officers who make immigration decisions look at these things. Government agencies are also patrolling social media. In fact, we now know that the NSA is pretty much saving anything you ever post. I am not saying that people should close their Facebook and other social media accounts. I Facebook. My wife Facebooks and my children are actively engaged in social media as well. It is an interesting phenomenon and it can be fun, and on occasion even informative. However, you need to be aware that not everyone looking at your page is your friend, and this becomes especially true if you are involved in a legal matter.