Part 1: Marketing Your Law Firm with Social Media
Part 2: Social Media in Litigation (You’re Here!)
Part 3: Advising Your Clients About Social Media
As the new year approaches, it’s a useful time to look at what we can all look forward to in the new year. I mean, it’s pretty arbitrary in general… except when you’re talking about accounting or CLE requirements. But we do it anyway, because it’s interesting.
In reality, the world of social media moves so quickly now that I should probably update you on trends every two or three weeks. But ain’t nobody got time for that! So here is part 2 of my Social Media Trends Lawyers Need to Know in 2016. In this part, the social media trends that litigators need to be aware of in 2016:
6 Critical Social Media Trends for Litigators in 2016:
1) More States Adopting Social Media-Specific Ethics Requirements
Since I started this blog in 2013, I’ve harped on the idea that lawyers need to be competent with evolving technology. The ABA also feels this way. Fortunately, at the state level, the requirement that lawyers keep up with relevant technology has been officially adopted in… 17 out of 50 states.
Ok, so that part isn’t all that encouraging, but it fails to take into account another trend in legal ethics: social media-specific rules. Just this year, new or updated rules governing the use of social media were adopted in North Carolina, New York, and Florida. New Jersey and Washington have proposed opinions pending, and several other states already had rules in the books (Pennsylvania’s rule is probably the best and most appropriate, in my opinion).
Given that the use of social media is continuing to grow at a rapid pace, you can count on most states jumping on the bandwagon pretty soon. Unfortunately, the opinions released to-date aren’t identical. However, one thing remains pretty clear:
How to take advantage of these social media trends in your litigation practice:
Follow the rules that would apply in any other setting!
It’s much better to avoid an ethics complaint than to defend one by claiming you didn’t know what to do.
It’s undeniable that a lack of ethical guidance is really annoying. However, the unfortunate part about some of the social media ethics opinions is that instead of providing reasoned guidance, they screw the pooch by completely failing to understand social media (as I described in my discussion of Florida’s disaster of a social media ethics opinion).
My suggestion, where no direct guidance is available, is to treat social media just like anything else. If you can’t do it in person, don’t do it on social media. You also need to understand the value of social media to your client, and more importantly, to your client’s case.
Regardless which ethics opinion your state uses as a guide, they all agree that you need to at least know what social media is.
You’re doing it wrong.
For some lawyers, that’s going to require some education.
2) The Rise and Rise of Streaming Video
It literally hasn’t even been a year since the live streaming app Meerkat exploded onto the scene at SXSW. Since then, apps like Periscope and Blab have joined in, with more on the way. So… what the hell am I talking about?
I’m talking about video. Live video. Broadcast by anyone with a smartphone. Available to anyone in the world.
Instantly.
Live streaming social media apps are taking advantage of what’s been described as a “perfect storm of technology and accessibility.” Technological improvements to smartphones to include high-quality front and back-facing cameras, along with improvements in wireless data transmission, has made anyone a potential broadcaster.
Yep, even them.
And they’re popular, too. Periscope, Twitter’s live-streaming app, now has over 15 million registered users. It was launched in March. Of this year (2015). As has been demonstrated by the use of private cell phone video recordings in several high-profile police use-of-force cases, video can be powerful. Now, everyone can share these events live.
How to take advantage of these social media trends in your litigation practice:
Make sure to ask about use of live-streaming apps in discovery.
Quite frankly, the rise of live streaming video is, if viewed objectively, a g*d d%amned nightmare for litigators. Video evidence is basically the holy grail of litigation. With the advance of mobile recording technology – mostly due to improvements with smartphones – failure to consider the possibility that this evidence exists borders on malpractice.
Throw in the element of video that was live-streamed to a worldwide audience, and you have a whole new level of legal clusterf*ckery. Streaming video is live and unedited. And performed, for the most part, by people who couldn’t care less about issues of privacy and copyright.
Moreover, there are numerous differences between the different live streaming options. Do you know which one allows for videos to be archived? If not, you’re either going to miss out on great video, or get all worked up about video that was deleted 24 hours after it was broadcast.
At the least, you need to know what’s out there, and what it’s capable of. Does the opposing party have a witness who watched a live-streaming video of your client doing things they said they didn’t? Ok, so how are you going to challenge their credibility.
More and more of your cases will involve people who use live streaming social media apps. Odds are you’ll have to deal with the issue soon. That is, unless the data self destructs…
3) Ephemeral Social Media Popularity Continues to Explode
What are “ephemeral” social media networks? They’re the ones that your teenager uses so that you can’t see what they’ve sent or received. Yep, they’re self-destructing posts, messages, photos, videos, or pretty much anything else.
The most well known of these types of apps (and most used by your teenagers to send inappropriate pictures of themselves to their boyfriends/girlfriends) are Snapchat and WhatsApp.
Snapchat has over 100 million active users, and 45% of them are between 18 and 24. (Another stunning statistic: more than 60% of U.S. 13-34 smartphone users are on Snapchat!) More importantly, people pay much more attention to Snapchat messages than other platforms, often due to the spontaneous nature of the conversations.
WhatsApp, the ephemeral messaging system (Snapchat is photo-based), boasts over 850 million users worldwide, and will have more users than its parent company, Facebook, this year.
The general concept is that messages have a timer, much like a video in an episode of Mission: Impossible. Once that time expires, the message or picture or video (or whatever) is gone.
Gone for good, or just gone from sight? Gone from the entire network, or just gone from the recipient’s phone? It all depends on which app, which social network, and how the user has configured the app’s options.
And it’s not just teenagers or fringe social media networks, either. Facebook (a.k.a. 1 billion people) recently announced that they’re testing a self-destruct option on their messages.
How to take advantage of these social media trends in your litigation practice:
Ask about a party or witness’s use of ephemeral social media networks… as a credibility issue.
Particularly if the party or witness is a Millenial!
Knowing that self-destructing messages exist is one thing. Knowing why users find the communications to be more authentic and spontaneous representations of the speaker is another. Knowing which platform retains messages that have been “destroyed”? Well, that’s playing in a different league altogether.
Most people older than 30 don’t understand why you would want all of your messages to be deleted after they’ve been read, unless you have something to hide. Need proof? Google “Encryption” and “I have nothing to hide.”
4) The Majority of Social Media Use will be from Mobile Devices
Well, we’ve been heading in this direction for a while now. Not too long ago, I implored you to make sure that your law firm website was mobile friendly. And it was for a good reason too! Google recognized that the majority of searches would soon be coming from mobile devices, and they don’t want to refer someone to your website if it’s illegibly small on a smartphone.
Well, it’s happened. At least on social media. Experts predict that in 2016, mobile will be the main source of users for social media. In fact, Facebook already indicates that more than half of their users’ primary method of interacting on the site is through a mobile device.
How to take advantage of these social media trends in your litigation practice:
Make damn sure to get the metadata associated with social media posts!
There are quite a few little bits of information contained within social media posts. Obviously, the time and date of the post are in there, as are anyone, anything, or any image discussed within the post. But there is SO much more:
Among the items not included in that image of potential metadata contained within a Facebook post is the location of the person posting, among other things. By obtaining the metadata of any social media posts that you request in discovery, you’ll be able to find out where a person was when they posted/commented/liked/shared a post, and what type of device they were using.
In most cases I’ve seen, that’s a handy piece of information to have!
5) More Businesses Utilizing Enterprise Social Networks
Ok, first, I’ll handle the obvious: an enterprise social network is basically like a company Intranet. Instant Messenger for your co-workers. And they’re becoming incredibly popular in businesses of all size. Why? Because they promote and facilitate collaboration.
Just how popular? Slack, the popular communication/collaboration system launched last year, has 1.7 million daily active users, and is adding 5,000 new active users every day.
In case you didn’t know, collaboration isn’t just a recent buzzword in business, but a legitimate and growing priority for companies (including law firms) of all size.
I’m loving this whole “working together” thing, but can we do it in a way that I don’t actually have to see you?
In order to maximize the benefits of collaboration, companies need people to have real-time access to the same documents and information, oftentimes from multiple locations.
How to take advantage of these social media trends in your litigation practice:
Add intra-company communications other than emails to your discovery requests.
If recent history has taught us anything, it’s that lawyers can’t discover what was done or said using a tool lawyers don’t understand. It was true in the beginning for email, and remains true, for the most part, regarding social media.
That failure has tangible results, too. Even today, too many people in business regard their emails on company accounts as something private; somehow different from a written letter or fax. This incorrect belief has been supported, in my experience, by in-house counsel who don’t want to create conflict, and by outside counsel who want to add one more reason to refuse full discovery.
How I feel every time in-house counsel tells me that employee concerns about the privacy of company emails are “legitimate.”
However, courts have totally rejected this notion. Email, and any other intra-company communications, are discoverable. With companies like Slack claiming that their messaging services reduces email by almost 50%, one needs to ask where that email is going. It’s not disappearing, it’s just being performed in a different spot.
Slack also claims its users reduce meetings by 24%. All the information that used to be conveyed in 50% of company emails and 24% of meetings now occurs on the Slack messaging system. That’s an awful lot of information you’ll miss if you fail to ask for it in discovery!
6) Social Media is Becoming a Go-To Customer Service Channel
This one might surprise you, but pretty much anytime I have an issue with some form of technology, the first place I go is Twitter. First, I can get a real-time look at whether people are talking about the same issue I’m having (like website issues). Second, simply by including the company’s twitter handle in a tweet, I let them know I’m having an issue.
You know what? They usually respond in minutes. If not sooner.
Which is more than I can say about this approach.
One social media marketing expert points to a reason – when we talk about someone on social media, we’re expecting a response. She said that failure to respond is always noticed, and usually changes her opinion about that company.
How to take advantage of these social media trends in your litigation practice:
Search social media accounts to find a history of complaints or systemic problems.
Whether you’re litigating a business dispute, a products liability claim, a divorce, or employment litigation, past evidence of addressing a single issue can be very important. Say you’re defending a company against a products liability claim, and the plaintiff had a history of making litigation threats against other companies’ customer service reps?
If they did it on social media, you’ll be able to find it. And the likelihood that they did is increasing!
The same is true for plaintiffs. Imagine if General Motors had to respond on social media to questions about their ignition keys turning off. Think they’d have been able to cover that up for so long? No, and personal injury attorneys would have been able to introduce evidence of the social media interactions as evidence that GM was aware of the problem.
Too many lawyers fail to appreciate the types of information available in an opposing party’s social media accounts. While some types of material (like photos) are moving from analog to digital, other types of information that never used to be in discoverable form is now available. Like interactions with customer service.
Failing to check, particularly in light of #1 above, could be disastrous for both your client and your law license.
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