Cumberland law school event addresses effects of social media on litigation
BIRMINGHAM, Alabama – Should lawyers be allowed to “google” potential jurors as part of the selection process?
Should courtroom observers be able to use smartphones to capture video of a witness giving emotional testimony?
Could emojis – icons such as smiley faces and animals – be used to identify who sent a text message in the same way handwriting can be analyzed?
These concerns and many others about rapidly evolving technology and widespread social media use were addressed today at a symposium on the use of social media in 21st century litigation.
It was the first such event presented by the “American Journal of Trial Advocacy,” a law review founded in 1977 at Samford University’s Cumberland School of Law.
“Social media is going to be relevant for our practice,” said Kathleen Bowers, the editor-in-chief of the journal and a Cumberland law student who graduates in May. “As we graduate and take the bar, we’ll certainly have to deal with these issues.”
About 200 lawyers and law students gathered in the university’s John L. Carroll Moot Courtroom to hear nine participants from across the country address the effects of social media and technology on the law.
Panelists cited several examples of criminals being tripped up by social media, including a cheating husband whose travels with his paramour were well-documented on his Facebook profile and a bank robber who was convicted after posting a status saying he was “on da run after robbin’ da bank.”
The panel of professors, entrepreneurs and attorneys agreed on certain necessities as social media continues to become more prevalent – primarily that attorneys should stay abreast of technological advances and explore the use of social media evidence.
“If you’re not pursuing these avenues, you may be at risk of not fulfilling your duties to your client,” said panelist John G. Browning, an attorney from Dallas, Texas.
Courts across the nation have not agreed on whether social media evidence is admissible, and the issue is arising more frequently. Several of today’s panelists agreed that old rules still apply, but they must be adapted as technology advances.
“There’s a disconnect when it comes to applying the rules in a new context with new technologies,” Birmingham attorney J. Paul Zimmerman said after the panel discussions ended. Years ago, courts were reluctant to admit fingerprint evidence, and DNA evidence has only been considered reliable for a few decades, he said.
Keynote speaker Paul W. Grimm, a U.S. District judge from Maryland, acknowledged that courts are still grappling with social media evidence.
“This notion of ‘What does it take to get a social media site or electronic evidence of any kind authenticated?’ is the key issue,” he said.
The admonishment jurors receive before a trial – when they are told not to discuss the case outside the courtroom and to avoid media accounts of the trial, among other things – needs to be tailored to include social media activity, Zimmerman said.
There’s a difference between a juror going to dinner with a friend one night during the trial and discussing the case versus posting something on Facebook where possibly hundreds of people can see it, he said.
“The potential audience is so much larger,” he said of social media.
Social media affects clients of all socioeconomic backgrounds and can influence all types of cases – from the most basic domestic relations dispute to a Fortune 100 company’s complex civil suit, said panelist Roe Frazer, a lawyer and the managing executive of a Nashville-based digital marketing company.
“For young lawyers or law students worried about their careers, the best thing you can do is embrace social media,” Frazer said.