SOCIAL MEDIA AND LITIGATION: THE RETIRED JUDGE’S VIEW: “THE WORLD’S PRIVATE INVESTIGATOR – ON RETAINER FOR EVERYONE”
Over many years this blog has looked at several judgments and articles, by the Canadian judge, The Honourable Joseph Quinn. I refer people often to Things Lawyers do to Annoy Judges, and the judgment in Hearing Clinic (Niagara Falls) Inc -v- Ontario Ltd, Lewis & Lewis 2014 ONAC 5831 (CanLii), summarised here. (“Closing argument was in writing: an eye-glazing, bum numbing, disc-herniating total of 662 pages (single-spaced, medium-sized font and heavily footnoted”). Joseph has now retired. However he has been in touch and given me permission to draw from several of his articles on litigation. This is the first in a series of posts covering his work. Here we look at a detailed article about social media and the courts. It is a wide-ranging examination of many of the issues facing courts and litigators when dealing with social media evidence. It covers issues from credibility, admissibility and authenticity. Some of the issues are specific to one jurisdiction, however the majority of the issues are universal. As ever these are edited highlights, the aim is to encourage you to read the full text, available here. SocialMedia
“The motto for a successful litigation practice used to be “preparation, preparation, preparation.” Now it is “troll, troll, troll.”
… I do not see how one can be a trial lawyer today without performing a full Internet search on every client, every opposing party and all prospective witnesses, being mindful, of course, to avoid violating the Rules of Professional Conduct.”
SOCIAL MEDIA: A GLORIOUS TIME IN HISTORY TO BE A TRIAL JUDGE
Social media has made the judge’s life easier.
[1] As a trial judge who sometimes struggled with findings of credibility, the emergence of social media evidence provided confirmation for me that there is a God.
[2] One of the diminishingly few delights of my job was to watch a wife in the witness box conduct herself as if she were a collateral descendant of Mother Teresa (as she then was), only to be confronted with her Facebook postings which revealed, instead, a manipulative shrew with a PhD in profanity; or, to observe a husband present himself in court as if he were the prince of patience and propriety, until his e-mails and social media postings showed him to be a spousal bully and a laissez-faire father.
[3] This is a glorious time in history to be a trial judge. E-mails, text messages, MySpace, Twitter and Facebook postings, along with other social media contributions, are evidentiary gifts that keep on giving; and the platform numbers keep on growing.
[4] Determining credibility used to be a lonely task; not anymore. Cyberspace is the amicus curiae of the twenty-first century.
[5] I cannot think of any type of case in which social media evidence could not surface or in which it would have no value. Social media is the world’s private investigator – on retainer for everyone.
PROFESSIONAL HELL FOR LAWYERS
While social media can be helpful for judges it makes life very difficult for lawyers.
[9] The downside to this digital delirium is that it places a greater-than-before burden on counsel for both sides in a piece of litigation. Preparation time and the associated expense become difficult to estimate, as does the ultimate outcome. When your client asks, “Do I have a case?” your answer will be, “That depends on your profile, list of friends, group memberships, messages, chat logs, Tweets, photos, videos, IP address, tags, GPS locations, check-ins and login timetables and whether you have ever met Anthony Weiner online.”
[10] Litigation has always been unpredictable for counsel. Now, with social media evidence skulking everywhere, conducting a trial is like taking a long walk down a dark alley: it is just a matter of time before you will be mugged.
[11] The motto for a successful litigation practice used to be “preparation, preparation, preparation.” Now it is “troll, troll, troll.”
[12] I do not see how one can be a trial lawyer today without performing a full Internet search on every client, every opposing party and all prospective witnesses, being mindful, of course, to avoid violating the Rules of Professional Conduct. I do not think that it is sufficient to ask your client whether he or she has produced everything of relevance or told you all that is relevant. Too much is at stake to rely on the recollections of someone who may have an imperfect memory, intentional or otherwise.
[13] In my opinion, there is a professional obligation to carry out Internet searches of at least publicly assessable sites in respect of all parties and likely witnesses in a legal proceeding. Beyond that, social media searches constitute an ethical swamp.
[14] Furthermore, it would seem necessary to have a computer forensics expert on speed-dial; someone able to address issues such as: computer or mobile device activity; access to a computer or mobile device; planted or altered content; reliability of dates and times; usage patterns; and so on. Indeed, if I were still in practice, I would give up a few vacations in order to take computer courses and develop some degree of forensic skill.
THIS IS NOT WHO I AM! YES IT IS: WE ARE MORE LIKELY TO SEE THE REAL PERSON ON FACEBOOK THAN IN THE WITNESS BOOK
Litigators often see an argument that social media puts forward a “false”/”rosy” image of someone’s life. However the judge’s view is that social media can be more authentic than the presentation in court.
[67] A close cousin of authenticity is misrepresentation: by that I mean, does the social media evidence accurately represent the character and conduct of the person depicted. From time to time, one will hear comments that people on Facebook or other social media sites “endeavour to portray themselves as something other than what they are”: see, as an example, McConvey v. Hart, 2013 CarswellBC 1802, 2013 BCSC 1058, 229 A.C.W.S. (3d) 604 (B.C.S.C.) at paragraph [142]. However, even if true (and I happen to think otherwise), this certainly is not a preemptive assumption. It is for the Facebook subject to prove that his or her authenticated Facebook statement does not represent his or her true character.
[68] In any event, it is not helpful to observe that people on social media sites “endeavour to portray themselves as something other than what they are.” This phenomenon is not new. Litigants and their witnesses endeavour to do the same thing every day in our courts where they appear, freshly scrubbed, sporting an outfit that has not been worn since Aunt Fern’s funeral and using a sometimes-stilted vocabulary reserved for the front church pew. My personal view is that we are more likely to see the real person on Facebook than in the witness box.
[69] This is not who you are? Yes it is.
XI. THE WATERGATE POSTULATION
One thing the judge makes clear in that parties “caught out” by social media posts are best admitting it, apologising and getting on with things. The cover up is invariably worst than the original breach.
[402] Does history have a lesson for lawyers and their clients working with, or ambushed by, social media evidence? Yes.
[403] For those of you on the flattering side of 60, the term “Watergate” may have a foggy meaning. Allow me to lift the fog.
[404] On Saturday, June 17, 1972 (I had been a called-to-the-bar lawyer for about three months), there was a break-in at the Democratic National Committee headquarters at the Watergate, a hotel-office complex in Washington, D.C. It was the 1972 version of an e-mail hack today.
[405] Five men were arrested for the break-in. They were found to be carrying cash which was traced to a slush fund used by the official organization behind Richard Nixon’s campaign for re-election. (Nixon was a Republican, hence the interest in the Democratic National Committee headquarters).
[406] An investigation was launched by the Senate Watergate Committee in July of 1973, during which testimony was heard from, among others, former members of President Nixon’s staff. In the course of this hearing, the Committee learned of secretive and sometimes illegal activities (labeled, at the time, “dirty tricks”) carried out by people connected to Nixon and to his administration. The “dirty tricks” included bugging the offices of political opponents.
[407] The Senate Watergate Committee hearing produced one bombshell after another, with the biggest blast coming from testimony that President Nixon had a tape-recording system in his offices. The equivalent today would be to come upon a cache of relevant social media evidence midway through a trial. The hearing was upended.
[408] After intense litigation, the United States Supreme Court held that President Nixon was required to turn over the tapes. These audio recordings showed that Nixon had tried to cover-up what occurred after the break-in and that he had attempted to obstruct justice.
[409] It was the cover-up, not the break-in, that forced Nixon to resign on August 9, 1974.
[410] Subsequently, there have been many instances (usually in the world of politics) where this history lesson was forgotten; the cover-up almost always is worse that the initial wrongdoing.
[411] Of what relevance is this to you and to your work as a trial lawyer? In a family law trial, for example, where custody is an issue and the father, again, for example, is confronted with a photograph of a drunk male, who looks like him, a lot like him, doing cartwheels in the nude down Yonge Street in Toronto at noon hour, he might consider immediately admitting the authenticity of the photograph, apologizing, explaining that this is not indicative of his character and swearing that it will never happen again. Thirty seconds of contrition will curtail what otherwise would be a lengthy and embarrassing cross-examination. Do not attempt a cover-up. Instead, confess and curtail. I have witnessed this happen in trials several times and, if genuine, it is very effective. It removes most of the fuel from the fire that otherwise might burn uncontrollably. A vigorous cross-examination of a contrite witness quickly starts to look like bullying.
[412] The alternative is to dance around the issue in the witness box and hope that your trial judge is a gullible dimwit (and, as I am now retired, your chances of being that lucky are greatly reduced).
[413] Had Nixon confessed, rather than covered-up, he would have been able to complete his second term as president and avoid the ignominy of a forced resignation. The damaging fallout would have been curtailed.
[414] Therefore, confess and curtail. Here endeth the lesson.
SOCIAL MEDIA: THE TRUTH SERUM OF OUR TIME
XII. CONCLUSION