Thought certain hallowed aspects of society were free from Facebook’s influence? Think again.
It seems that Facebook and other social media platforms are taking an ever expanding role in criminal and civil litigation.
Of course, on a certain level, its use in civil litigation is quite logical – It’s a natural boon for divorce lawyers to be able to prove infidelity or unsavory conduct with suggestive photos or lascivious posts pulled from Facebook. And apparently, its now routine for civil lawyers to catch people in untruths using social media. The New York Times gave the colorful example of lawyers pulling Facebook photos of “people claiming to have a back injury dancing atop a bar.” The fact is that social media has become a powerful resource for lawyers to find pertinent information relating to civil litigation. As Kenneth Withers, the director of judicial education and content for The Sedona Conference, described the phenomenon: “In the world of electronic information, the amount of potentially relevant information in discovery has exploded…And with social media, there has been an explosion of an explosion.” Thus social media greatly expands the information and potential evidence available to lawyers. But, as of late, social media might have another role to play in the judiciary – advocacy.
Mark O’Mara, the lawyer defending George Zimmerman in the Trayvon Martin murder trial, has embraced social media as a tool to advocate and fundraise for his unpopular client. O’Mara enabled a defense web site, a Twitter account, and a Facebook page advocating for his client’s innocence. As the initial attention that the Trayvon Martin case received spread rapidly through social media networks to reach a scale of national prominence, O’Mara also says he is using social media in order to counter an “avalanche of misinformation” about Zimmermann and the facts of the case. Almost unprecedented in a criminal case, O’Mara’s use of social media reflects the desire of lawyers everywhere to learn how to handle social media’s intersection with the courts. Nicole Black, co-author of “Social Media for Lawyers,” says that criminal lawyers are looking for crash courses for how to use social media to their advantage. As she described it, “There is almost hysteria among the lawyers to understand it and how its affecting their practice.”
As for O’Mara, he’s ahead of the curve – and unapologetic about it. As he said in court recently when pushing for access to Mr. Martin’s Facebook page for evidence, “This is 2012, and I’m sorry, I used to have the books on the shelf, and those days are long gone,” he said. “We now have an active vehicle for information. I will tell you that today, if every defense attorney is not searching for information on something like this, he will be committing malpractice.” Eager not to get left behind, other lawyers will no doubt utilize similar methods. But whether O’Mara’s strategy will pay off where it counts – in the courtroom – remains to be seen.
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