In the ever-increasing world of instant information, we should consider how we utilize the onslaught of digital information, in particular social websites like Facebook, MySpace and personal blogs.
A. We Watch Them:
A 24 year-old drunk driver being sentenced for vehicular homicide convicted of crashing into and killing a woman. At the time the crash, the drunk's blood alcohol level was approaching .4, eight times the legal level.
As he gets up to address the judge in what looked to me to be rehearsed, with a tear in his eyes and a quivering voice, he turns to the grieving family, and to me as the family's lawyer, and says "I am so sorry. I have never done anything like that. I'm not used to drinking. It just happened, but that is not me. I made a bad decision that night. But that is not me." This defendant's plea to the family was only part of a bigger effort to convince the judge to give him only a slap on the wrist, instead of a jail sentence.
Ten years ago, his speech might have worked. But the Defendant made three mistakes. First, after killing my client, he continued to update his MySpace site. Next, he was stupid enough not to restrict access to his updated thoughts and actions. Third, he underestimated the extent to which my office would go to locate his social networking.
So what was that Defendant saying on his MySpace page? Well, two months after killing my client while drunk driving, and 6 months before he got up in front of the judge faking his sorrow, he updated his site to report his current "hard core partying" and that "smoking weed was the only thing that he did EVERYDAY."
Because we did our homework and searched out that drunk's social network communications, the judge got to know the real Defendant through printouts of his MySpace site and he was subsequently sentenced to a very long prison sentence. He got caught posting statements that were180 degrees different than the message he was trying to sell to the court.
Of course, a Defendant is not the only one who can get caught.
B) They Watch Us:
A 33 year-old female client of ours posts to her Facebook photos of a recent vacation. Those pictures were taken of her on a trip to Cancun. They come one year after a disabling car accident and about one month before she gives testimony in her deposition that details the daily physical struggles that she experiences. Of course, the photos posted don't depict any of that.
They show her smiling, sipping from a big margarita and seemingly carefree. The fact is, she was 3 months post neck surgery at the time of this trip. While she was in a great deal of pain, and did look about 10 years older than she was, she posted the best of the photos that were taken. The fact is people smile in photos. It almost can't be helped. People smile in mug shots. It's just what we are programmed from an early age to do. And people who maintain a social networking site are all making their best efforts to be social.
However, when the defense lawyer discovered those photos, it breathed new life into his otherwise flailing defense. It made the case tougher to settle, and those postings on Facebook probably cost my client $10,000 or more in settlement value.
The truth is, it doesn't matter what the truth really is.
For these defense lawyers, the truth is whatever they can make something look like. Taking a couple of smiling vacation photos and contrasting to videoed deposition where the client is detailing how much pain she is in all the time, is usually all a jury needs to see to conclude that they are being deceived. They probably aren't. But that's what it looks like, and "perception becomes reality."
Clients of my firm are regularly reminded of the power and effect of posting on social network sites. These law firms we are up against are funded by the insurance industry and spare no expense in their background and online research of our clients. Often, they get all the information they need from Facebook, MySpace, or a blog. The information they obtain can be deadly to a case.
Facebook and MySpace have settings that can allow you to restrict access to your information from the general public. We encourage our clients to only allow people they know personally to have access to this information. Additionally, you should be very careful with the nature of the information you share on these sites and blogs.
At Anderson, Hemmat & McQuinn we know the importance of having a full understanding of social media and its significance on our client's cases. If you have questions about the impact that these forums may have on your case, please do not hesitate to call and speak with one of our attorneys today.