Twitter. Facebook. Instagram. Snapchat. It seems as though nearly everyone has one of these social media platforms, and with them, plenty of opinions.
Social networking has massive appeal—and for obvious reason. First, individuals are able to connect with those who live in various parts of the world. Then, he/she has the metaphorical floor pretty much any time he/she wants it—and all behind the safety of the computer screen. Social media networks have essentially decentralized newsgathering and journalism—for better and for worse—allowing users to quickly realize what the world is up to and who thinks what about current events/happenings. Moreover, these sites tailor content to you based on your internet activity. In an instant, your message, your photos, your thoughts, your web persona is broadcast directly to those who follow you. In just moments, you can be part of active conversations on topics you find intriguing—all complete with the unencumbered ability to chime in however you see fit (with a filter to make you look good while you do it!).
Over time, social media has naturally given way to some legal woes. For instance, threats made via Twitter are still threats, and courts will treat them as such.
But a presence on social media can make its way into the courtroom in other regards as well.
Even when a claim does not involve a tweet or Insta post itself, however, these forms of expression can impact litigation. What most see as a way to communicate, litigators see as a potential treasure trove of evidence. In civil litigation, parties have an opportunity in discovery to seek information that is potentially relevant to asserted claims. When a lawsuit is filed, plaintiffs must subject themselves to providing relevant information when requested by the other party. This can translate into a problematic situation when one must surrender one’s thoughts, opinions, breakfast, and everything in between in black and white as posted online.
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If a litigant has a social media account, it should be assumed that opposing counsel will attempt collect anything incriminating expressed by that person and argue for its admission as evidence. While rules of evidence generally prohibit using character evidence, things like tweets, Instagram posts, DMs, and the like can still be admitted as evidence to prove other parts of a case—including a person’s intent, motive, identity, knowledge, preparation, etc. Admission of incriminating posts then creates a risk that jurors will draw negative inferences about that person’s character, even if a judge instructs them not to do so. After all, those jurors are only human.
Another downfall social media posts can play for a plaintiff’s character can occur when defendants attempt to use social media postings to prove that a plaintiff hasn’t suffered emotionally. For instance, if a plaintiff is claiming emotional damage on a particular date but then that same date is seen laughing and smiling with friends over a pitcher of mimosas with a hashtag saying that the plaintiff is “#Livingmybestlife,” it may be fodder for the defense to say that said plaintiff was clearly not suffering.
Even setting one’s account to private does not guarantee that posts cannot be used against a plaintiff in a lawsuit. Other than privileged communications, the substance of private conversations are subject to discovery if relevant.
Obviously, the best way to prevent opposing parties from discovering potentially problematic social media posts is to refrain from posting on social media at all. However, a more realistic approach is to be mindful of what you express in your social media postings and how others may perceive (read: twist or construe) them. A discerning sense of expression when it comes to social media may prove to be wholly beneficial should you find yourself on the plaintiff side of the courtroom.