Social Media: The Death Of Your Case

A February 26 story from the Miami Herald has every attorney who’s ever practiced law in the modern age silently shaking their head in disbelief.

You can read the full story from the Herald here: http://www.miamiherald.com/2014/02/26/3961605/daughters-facebook-boast-costs.html

To recap for those of you who have yet to read (or don’t want to read) the Herald’s article, Patrick Snay, 69, the former headmaster of the Gulliver Preparatory School, did not have his contract renewed in 2010. Snay sued Gulliver, claiming age discrimination and retaliation due to his daughter being a student at the school.  The case settled (as many do) in November of 2011, with Snay receiving $10,000 back pay, attorney fees of $60,000, and $80,000 in payments to Snay.  The settlement agreement also included terms Mr. Snay keep the terms and existence of the entire agreement.  Mr. and Mrs. Snay were happy to do so; their daughter Dana, who just graduated from Gulliver, had other ideas when she took to Facebook days later and posted the following:

Mama and Papa Snay won the case against Gulliver.  Gulliver is now officially paying for my vacation to Europe this summer.  SUCK IT.

Four days following the deal, Gulliver informed Mr. Snay they would not pay as Dana Snay’s 1,200 Facebook friends had seen the above quote.  This constituted a breach of the “confidential” settlement agreement according to Gulliver.  Mr. Snay appealed, and on Wednesday the Third District Court of Appeals tossed the settlement, saying Dana Snay’s Facebook post breached the settlement agreement.

Every lawyer who’s had clients with social media accounts–especially the family law sector–sighed a collective “DUH” at this ruling.

I tell every client who signs with me that when they sign a contract, they are agreeing to a full blown moratorium on Facebook, Twitter, Instagram, Snapchat, and any other social media service to which they subscribe.  They will not delete or suspend their accounts, they just agree not to use them.  This is because social media accounts are a wealth of information for those of us who work in the legal field, and people often post material that can be detrimental to their cause.

Case in point: I once had the pleasure to represent a lady charged with aggravated assault.  She’d taken a Glock and fended off a drug dealer’s posse from her driveway.  The drug dealer then went to his home and called the police, saying the lady had come to his door and threatened him with a gun.  I took to Facebook and with a basic name search found a dearth of information on the dealer, including photos of his wares, pricing for his goods, pictures of paraphernalia, and numerous photos of him and others getting high.  I took screenshots, and had the resulting pictures ready for the first hearing.  The DA’s office quickly dropped the charges against my client after seeing 8 x 10 glossies of pot plants and status updates like “experimenting w/ new tinctures tonight, who wants to come buy some”

In yet another example, a man received a verbal tongue lashing from a judge after seeing his father post ill timed complaints about having to wait all day in the courthouse for his custody case to be called–complaints including statements like “I hope that son of a B**** gets his kids taken from him one day and see how he likes it…That man is a bitter old F*** in a robe.”  Again, a little bit of photography and I’d driven a wedge in Father’s case.

I’m not the only one who uses Facebook and Twitter for investigative purposes.  DCS and the Youth Service Officers (YSOs) who work in the Juvenile Justice system often scan Facebook and Twitter for the sake of finding out information on their charges. I heard a story once of a judge’s strong rebuke of a young man facing vandalism charges who’d listed his education as a Master’s Degree from “Weed University.”  Said Judge quipped, “I don’t know if Weed University has a strong curriculum for its students, I’ve never seen it on the U.S. News School rankings.”  Kids and parents post pictures of themselves with drugs and alcohol all the time.  They make damaging statements to themselves and others involved in their case when social media becomes the outlet of choice for commentary on the legal process.

This happens in far more cases than I can count.  If you’re suing your employer for Worker’s Compensation benefits or a restaurant in a personal injury case, claiming a back injury has left your life joyless, it’s a terrible idea to post pictures of you smiling from a cruise ship dock weeks after the incident that allegedly caused you harm.  Likewise, if you’ve allegedly injured your knees and have difficulty walking,  it’s hard to explain the photos on Instagram of you smiling with your latest 5K medal.  And if you’re in a drug case, it’s not a good idea to have pictures of you with a marijuana leaf necklace as your profile photo.

This could hurt you at the Federal level too. The Edward Snowden revelations of just how far government surveillance reaches has me wondering about the potential ramifications for the justice system.  If the civil attorneys and people in Family courts are looking at what you post, what about the Assistant US Attorney’s office in your area, or the DEA?  And there’s always the potential for State collaboration…with the Courts turning their eyes to social media and the ramifications of doing something as simple as “liking” another person’s post for First Amendment purposes, it’s not a stretch to see the Feds giving states some of their digital spy toys to use in high-profile matters.

In sum–social media is a fun thing, but it’s got a purpose: to collect data about you so others can market to you.  It’s also the easiest avenue to exploit for attorneys and court officials looking to prove their case.  Keep your security settings up to date, make sure you don’t post anything your family wouldn’t want seen, and when you enter the legal system, for goodness sake STOP POSTING.  Just for a little while.  There was a time when you lived without Facebook and Twitter, and you’ll be just fine without it for a few months.

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