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Beware the keyboard counselor

George Zimmerman2006 was a banner year for social media. Facebook opened to the public, and Twitter launched the micro-blogging trend. Seven years and more than 1.5 billion users later, social media has revolutionized not just the tech industry, but also our entire lives. There’s only one problem:

Apparently, every social media account also comes with a shiny new law degree.

If you’ve spent any time on Facebook or Twitter over the past month, you have undoubtedly encountered the deluge of news reports, opinions, and predictions about George Zimmerman’s murder trial. Thanks to social media, people the world over could comment on everything from Don West’s knock-knock joke in the defense’s opening statement to John Guy’s emotional appeal in the prosecution’s closing argument and have been debating the verdict non-stop since Saturday.

The prevalence of this behavior should cause some concern from a professional standpoint. Even though social media has fostered an unprecedented amount of connection between people, it also lets people, whether intentionally or not, to spread information that is incorrect, misrepresented or even outright lies. During the Zimmerman trial, for example, millions took to social media to complain that the prosecution wasn’t introducing evidence of Zimmerman’s alleged violent history or to criticize the judge’s decision to keep Trayvon Martin’s text messages out of evidence.

On their own, these issues would not be significant. However, when people send these messages out into the echo chamber of social media, they see just how many others share the same opinion and can easily dismiss or ignore the other side. This only serves to reinforce the confidence in their belief, even if it’s incorrect.

I point this out because I want you all to be prepared for the possibility that social media could make it more difficult to prepare and try a case in the future. Clients may be less willing to negotiate with the other side if they see all the Facebook groups supporting their cause. Witnesses may wind up changing their stories if they find it evokes a better response on Twitter. Future jurors’ opinions may be swayed if they agree with a mistaken social media post that has gone viral.

The good news is that the legal system has encountered similar issues before, and that it has adapted to nullify their courtroom impact. Since the debut of “CSI” and similar television shows, prosecutors across the country have reported a so-called “CSI effect,” wherein juries have been expecting the same clear-cut, flashy forensic science that these shows portray. Many attorneys countered this by having their expert witnesses directly address those evidentiary concerns or by using relevant questions to screen out potentially susceptible jurors during the voir dire process.

Syndicated TV courtroom shows like “Judge Judy” and “The People’s Court” have also been targeted for misleading people about what exactly the role of a judge is in an actual courtroom. In fact, a 2002 juror survey revealed that frequent viewers of these programs expect a real judge to actively question the participants in the proceedings, to hold personal opinions regarding the outcome of a case, and to make those opinions known to the jury. Courts have tried to remedy this by revising jury instructions to clarify how juries are and are not to interpret a judge’s actions.

Now, I certainly wouldn’t be the first person to describe the impact that social media can have on our day-to-day lives, but I hope I’ve been able to touch upon the impact that it can have specifically on the legal profession and on our judicial system.

One comment

  1. Gretchen Barker

    I’ve seen this in action from before social media, and I agree that it will explode with increasing social media. People have always sought out the positive opinions of others to validate their own positions in their court battles, and often those of us who litigate would be facing an opponent with unrealistic expectations about what the law would get them. It makes negotiating a settlement near impossible. How often has a naïve opponent arrived to the negotiation table with a head filled with dreams of a big verdict, what I call “the lawsuit lottery”, or some biased view of how property or children’s time should be managed in a dissolution case? How many times have they stormed away from negotiations, complaining that the law is unfair, insisting that their best friend or their mother’s hairdresser or the guy they met online ended up with a much better result?

    It’s an important skill for us to develop, to help our clients (and naïve opponents, if we want PRODUCTIVE settlement negotiations) understand that every case is different, and what happened to the neighbor’s case is not likely to happen in their case. In many situations, the end result is much more fair than our clients believe… and depending upon which side we are on, that means our clients will be getting a BETTER result than what they feared, or they’ll be horribly disappointed.

    Client management skills are vital in this world, because if we cannot help them understand the REALISTIC likely results of their case, we are highly likely to find ourselves at the wrong end of an angry client… maybe one with no real teeth as far as a REAL complaint against us would stand… but one who runs around, suggesting to all their friends and loved ones that we did not do the best job we could, that they got the shaft from the legal system and their lawyer… etc., etc…

    I don’t see this is a distinct problem that arose after social media began, but as the continuation of an ongoing problem that has simply gotten bigger and less manageable since social media started.

    These days, instead of saying “uncle Joe got a better result”… we are facing their claims of “the INTERNET says I should get a better result”… and we are shadow-boxing an elusive opponent who could magically come up with a better result, but who doesn’t have to ever show their face and PROVE it. WHo has no details about what is really in our case file or our opponent’s position…

    How many times have we faced a client who sought a second opinion, where the lawyer did something unethical by rendering a contrary opinion to ours without bothering to get all the information they needed in order to give an INFORMED opinion? Before the internet, that was a pretty rare occurrence… but after the internet, it’s a DAILY occurrence.

    Oh well. At least knowing about the phenomenon makes it possible to deal with it.