Instant global communication and easy access to vast sources of potential evidence: such are the two main tools that social media offers to the world of litigation. Thus, simultaneously social media has both shrunk and enlarged the litigation world. Taking Facebook, Twitter and LinkedIn as the largest social media platforms, the statistics speak for themselves. 1.2 billion people world-wide had a Facebook account in 2013. 230 million Twitter users tweeted 500m tweets a day. LinkedIn, which might claim to be more a professional platform than a social one, counted 259 million users.
Not surprisingly, given its American provenance, social media usage in litigation has its foundations in the USA and more relevant case law, both at Federal and state level, exists to date. However, UK lawyers are fast catching up. 2012 marks a landmark in acknowledging the growing role of social media by law firms; the Law Society of England and Wales published its first ever guidelines for use of social media. There is no doubt that this was an endorsement of the role of social media in modern litigation. Recognising the benefits as essentially a means of communicating with clients, the opportunity for marketing and advertising, a forum for professional networking and debate, the guidelines also highlighted some of the potential risks. Essentially these link to ethical and professional codes such as lawyer-client relationship and confidentiality. A debateable question might be whether the lawyer should befriend a client on a social networking site such as Twitter. Although such might aid quick communication between the two, it could equally jeopardise the professional relationship.
The best way to minimise the dangers of social media in litigation is to be aware of them and follow the professional and common sense rules. There is no doubt that the role of social media in litigation is here to stay and is growing. This was evidenced in a recent survey of use of social media by law firms, which ranked the top ten users. It reported that Twitter was the most popular method of communication used by law firms, followed by Facebook and LinkedIn. The firms at the top of the league table were also seen to be maintaining blogs, that were regularly updated, came from heads of practice and exposed deals and expertise.
Also pertinent to the use of social media in litigation, is its role as a source of information and evidence in the litigation process itself. A recent article in the NYSBA’s journal highlighted this trend: “Many blogs are devoted to e-discovery and social media as these relate to the practice of law. E-discovery and the use of social media are fast developing – perhaps the fastest developing – areas in the practice of law”. Examples of use of social media in litigation includes in divorce cases to trace undisclosed assets or to reveal lifestyle and expenditure habits. Forensic accountants can be employed to find similar evidence in debtor-creditor disputes. The admissibility of such evidence has in itself been appoint of legal argument. Other legal disputes revolving around social media have linked to jury access to prejudicial information, gleaned from social media sites. Instances of jurors and claimants befriending each other on social media sites has also been controversial. The plethora of evidence available on social media and its potential use by both claimants and defendants raises huge ethical and legal issues, which will grow as technology advances. The insightful article on social media and litigation by US lawyers Andrew Delaney and Darren Heitner was aptly titled it “Made for Each Other- Social Media and Litigation.” (See NYSBA Journal of February 2013.) The development of that relationship is worthy of continued scrutiny. Social media may well have made the world of litigation a smaller one; it has equally made it as a more dangerous and risky one.
This article was written on behalf of Vannin Capital. Visit their website to learn more about legal funding.
