If you are like many people, you look at the youth of today typing incessantly on their smartphone keyboards and wonder, “what do they have to say that is so important and to whom?!” Then, with a Scrooge-like “harrumph”, you discount the entirety of social media and with a wave of your hand, brush off instantaneous global connectivity and the entire digital world of the 21st Century. Nice going . . . you just put your law practice behind others and destined your clients for potentially serious problems later.
Ok, so you don’t have to jump into social media and begin posting what you are doing at every minute to the world, but you should at least understand what it is all about so you can use it, if you want to, or know how to apply it in future litigation. It is a proven fact that social media is a “gateway” drug and that you will wind up typing away on your smartphone everywhere you go if you start using it so read on at your own peril.
As something of an aside, this article is naturally not intended to provide legal advice or to form an attorney-client relationship with the reader; it is only meant to provide general information on the important topic of social media and its impact on the modern legal practice. Also, social media is not a gateway drug, really, that was just a joke.
What Is Social Media, Really?
Recently, I watched a very funny twenty year old Saturday Night Live fake commercial for robot insurance. It featured a well-known actor telling older people that one of the greatest risks they faced was robot attacks and that robots eat their medicine for fuel. The comedy of that ad highlights the fact that the world continues to change, that it is difficult to adapt to those changes, and that it is human nature to fear what we do not understand. Social media is no different; you may be reluctant to try it or use it because you don’t understand it or think you don’t. This article will give you an overview of social media to give you the confidence to give it a test drive and see whether you like it. Of course, if you don’t, you leave yourself wide open to robot attacks.
Now, just to impress upon you the scope and scale of social media, by the summer of 2012, Americans spent something like 120 billion minutes a month on social media, up from 88 billion a year earlier. That accounts for upwards of 30% of all time spent on-line. Over 600 million people now use Facebook, which ranks as the most-used social media site, and more than half of all Americans have some form of social media account.
Also, mobile usage is up tremendously with the reduced cost and proliferation of smartphones. So what is the accuracy of these figures you ask aside from the fact that 62% of all statistics are made up on the spot, who cares – this is not a PhD thesis, but the fact of the matter is social media usage is up and you see it all around you and hear about it regularly. Thus, for better or for worse, it is here to stay.Ok, so you realize you can’t ignore social media anymore, but you’re still not convinced that you need or want to use it and wonder what it really is. To break this information down succinctly, social media can be lumped into two general groups, (1) websites that host user-created content, like photos, videos, and text postings, and (2) sites that replicate that content and provide enhanced internet visibility.
In the first category, there are some more commonly used or “older” sites, which in the social media world means more than five years old, such as Facebook, LinkedIn, YouTube, Google Plus, and Twitter, to name a few, and some arguably less well-known or “newer” sites like Pinterest, Ezine, Delicious, Squidoo, Slideshare, and About.me. Likewise, in the second category, there are older sites, like Twitter (yes, it also replicates content), Hootsuite, and Tweetdeck and newer ones such as Sharehaulic, Reddit, and StumbleUpon. Haven’t heard of most of these? Don’t worry, neither had I just a few years ago, therefore, it isn’t difficult to wrap your mind around all of this as I did and understand how it can benefit your practice. Just think to yourself that the 12-year old you saw engrossed in her phone last Saturday morning was more than likely optioning positions on the Tokyo Exchange and definitely not telling her peers what she was shopping for or who liked who better. That will make all of this much easier to accept.
What Does Social Media Do, I Mean What Are Its Benefits And Uses?
Alright, now you understand what social media is so you’re likely wondering how it can benefit you. A very interesting phenomenon of social media is that credibility and visibility seem to have merged. When thousands of people accept what an actor or actress, for example, says on social media or they act in a certain manner because of that, it demonstrates that those who are visible through social media have instant credibility with the masses that they attract. It is a strange world where a store’s profits can increase simply as a result of a reality TV show star’s social media postings raving about the store, but it is the world in which we now live and the world that you must understand because it impacts your business and that of your clients. Ask yourself, would such postings qualify as unfair competition? What if they were disparaging to the competition? If you don’t understand social media at a fundamental level, how can you properly advise your clients and potential clients on points such as these?
Another benefit of social media is the referral of business. I know it sounds like a cliché adult story and I really should have started this article with, “I never thought this would happen to me”, but I have had clients find and retain me in my business litigation practice purely and entirely from the internet. I really thought it would not happen, at least not for another few years, but when it did I was pleasantly surprised. It shows a trend that some segment of our population is looking on-line for professional help and advice.
So, if you are not using social media, I thank you because you are allowing me and everyone else to capture that business. If you want to see what you can do on-line and how you can show potential clients who you are with a few simple clicks of a mouse or pokes of a phone screen, look at my site, http://www.davidsteinfeld.com. I never imagined that I would be one to write articles and make videos about Florida business law, e-discovery, and commercial litigation, but they are actually fun to do and if I can, you can too.
One other social media benefit is networking, instantaneous communication, and the sharing of information, knowledge, and documents. Not long ago, I met a pipe smoker in Japan on Facebook. We corresponded and I sent him a corncob pipe and some tobacco and in return he mailed me a Japanese pipe and some of their tobacco. He has since become the President of the Pipe Club of Japan. How amazing is that?! Ok, candor to the tribunal, I cheated a bit because I lived in Japan as a Rotary Exchange Student and I speak Japanese, but without social media we would not have been able to connect and build a friendship that easily across the planet.
When I was in the Army and stationed in South Korea, I practically needed an act of Congress to get a phone line to call back to the States. Now, with social media, I was able to Skype with my old Army buddy who was the Military Judge there and have a real-time video and voice conversation with him. This technology is available to us all so why not use it. With the permission of my opposition, I Skyped my client into a mediation not long ago, which saved my client a tremendous amount of money on airfare and hotel charges. That is just one way to use social media for the benefit of our clients.
So Why Should You Care – Social Media In Litigation
Now, getting to the heart of the matter, you understand social media, you use or are at least willing to try social media, so how do you integrate it into litigation or how does it factor in? First, you already know that our Florida Rules of Civil Procedure added e-discovery components on September 1, 2012. You are also likely aware that the comments to those new Rules make it clear that the Courts will not look favorably upon counsel that claim ignorance of e-discovery. Therefore, to protect yourself and your clients, you must understand social media and e-discovery.
While at present there is more Federal case law on the topic, a recent Virginia State Court decision sanctioned an attorney for over $500,000 for allowing his client to remove posts and photos from social media sites that were relevant to the case. The worst part is that the direction to do so came not from the attorney, but a paralegal, however, the Court found that the attorney learned of it and allowed it. While that may be an extreme case, the day is not far off when we may have Florida decisions along those lines.
Let me pose a hypothetical to illustrate the impact of social media in litigation and e-discovery’s place in it. Let’s take a client who advances a personal injury claim and asserts that he or she can no longer lift, bend, or whatever. Then, during the course of the litigation, that person or even a friend of that person posts photos of them skiing and having a great time in the hot tub near the slopes. If you are defending the case, those photos will make your client very happy. If you are prosecuting the case, they probably won’t. As you can see, understanding social media and how to ethically obtain those social media posts are now a relevant and important part of the practice of law in Florida.
Social media posts in the context of litigation can be thought of in two categories; (i) open source, which is unprotected information voluntarily placed in the public domain, and (ii) protected or compartmented information which has limited access or is intended to only be viewed by those the creator allows to see it. The common methods of obtaining information in discovery, such as Requests to Produce, Interrogatories, Request for Admissions, and physical inspections of hard drives, to name a few, still work for electronically stored information (ESI) and social media posts. What practitioners must do is understand applicable case law in the e-discovery arena and word these requests in a specific and acceptable manner.
In addition to obtaining ESI, including social media posts, in a lawsuit, counsel now have an obligation to act in advance to preserve this ESI through such mechanisms as Litigation Hold Notices. Florida attorneys must also be aware of and advise their clients of the liabilities for failure to preserve ESI, whether it is requested or, in some cases, not. For further information on this, you are welcome to view the two featured videos on e-discovery on the homepage of my site at http://www.davidsteinfeld.com.
In conclusion, Florida attorneys can now ill afford to ignore social media. While you may not desire to tell the world what you think of a movie you just saw through social media posts, you at least must understand the basics of social media, how it can impact a lawsuit in which you are involved, and how to properly and ethically advise your clients and prospective clients of this in an appropriate manner.
When you use social media in your law practice, it is prudent to review the Florida Bar Rules on advertising. It is also a good idea to be cautious in what you post and to recognize it is available to the world virtually on a permanent basis. When in doubt, contact the Bar.
If you are still unsure about social media and would like to get more information and a tutorial of sorts on how to start using it or how to use it more effectively, check out the free webinars put out by the free networking group, the Business Connection at http://www.yourlinktolocalbusiness.com. Click the “Blog” tab and down on the right side of the new window you will see a list of items. Follow that to Networking Education, Educational Videos, and LinkedIn Training (the direct link is http://pbbcblog.palmbeachbusinessconnection.com/group-video/linkedin-training).
The Business Connection is a free and unrestricted networking group with about 10,000 members from Miami to the Treasure Coast. It holds regular, in-person coffee and breakfast meetings at various locations and has on-line groups and forums that many members use. The Business Connection is a good way to interact with others who are also trying to get their arms around social media and understand its applications in business. The Calendar tab on yourlinktolocalbusiness.com provides the time and location for the events. There are even very nice people in it who will teach you privately how to create on-line profiles.
As businesses, in particular, gravitate to storing all their data electronically and individuals increasingly live in the digital world of social media, you can no longer ignore social media. It is not as difficult as you likely thought and once you try it, you will develop more comfort with it and may even come to embrace it. Good luck and see you on-line.