Social Media Law: Exploring social media’s role in notable litigation, Part Two

Scott Malouf

Editor’s note: Scott Malouf and Gary Craig explain social media’s role in notable litigation in part 2 of a 2-part series

Social Media Law’s latest installment is the second part of my interview with noted reporter Gary Craig. Below, Mr. Craig shares examples of how he used social media in his reporting, while I offer tips for responding to social media coverage of your cases. Part one of my interview, found in the July 31 edition of The Daily Record (http://bit.ly/1HSbDLq) is an overview of journalists’ use of social media to report on legal matters. Mr. Craig’s opinions are his own.

What is the most surprising thing that has happened to you because you are using social media? The reach of it. I covered the case of George Boley (http://yhoo.it/1PhEEWE). He worked at the school district and at SUNY Brockport I think. Well it turned out, years before, during the Liberian civil war, [it was alleged that] George Boley was considered a warlord who had been suspected of … getting young people to take up arms. He [also] ran for president of Liberia.

I was just starting to use Twitter and a community of Liberian peace activists [found my tweets, and the individuals] were great sources. This one guy said “There is a video of George Boley admitting to some [alleged] ‘bad stuff’ on a newscast from Liberia”. Neither the State Department or Boley’s attorney knew of it and this man chased the video down. There is no way before Twitter or social media that would have happened.

Has social media introduced new stakeholders into the conversation about a case beyond the parties and the courts? I have a lot of defense lawyers who are Twitter followers, we follow each other, and [when] legal questions come from the public I will post, like a moderator, “People have this question do any of you want to weigh in?” and typically one of these lawyers will .

It [social media] definitely brings the public into the conversation in a good and a bad way. It is bad [because users bring preconceived notions]. It is good in that it brings in substantive legal talk and … [develops] a thoughtful discussion. You have a more immediate way to try to bring thoughtfulness to the conversation than you used to.

Tips for handling social media coverage of your matters

1. Social media platforms differ. If your case or matter is being covered on an unfamiliar platform, get to know what kinds of content it offers (text, images, video, links, recommendations, etc.) and its community ethos.
2. “Follow” reporters and bloggers who cover your practice areas. It should help you recognize them, understand their interests and you will be better informed about recent developments.
3. Social media coverage, particularly “live-tweeting” or “live blogging,” often provides blow-by-blow coverage of the event not found in newspaper articles or long-form blog posts.
4. Live social coverage is difficult to do well and distracts from contemporaneous tasks like taking notes or following detailed testimony. Any posts produced during a proceeding may be incorrect or miss nuance.
5. If you see an error in coverage, do not assume the reporter or blogger will correct it. Not only are they busy, but some reporters believe that social media is “self-correcting” and their mistakes will be corrected by other users.
6. If your matter is being covered on social media, consider who may follow developments such as:
   1. Social media savvy judges and attorneys in your city or practice area.
   2. Witnesses, before they are to appear. If this is a concern, take steps to isolate witnesses or be prepared to examine or rehabilitate witnesses.
   3. Corporate clients or insurance carriers may follow the proceeding and send you questions before you have even left the courthouse.
   4. The public, who may be “deciding” your client’s case even before it starts.
7. Live social coverage may help you analyze the effectiveness of your presentation.
   1. Use “live” social coverage to test your arguments before a mock jury. Ask a couple mock jurors to “live-tweet” or “live blog” your presentation. If they cannot easily summarize key points, you may need to revise your presentation. (You can save the tweets or posts as drafts to avoid publishing them.)
   2. If your matter is being “live-tweeted” or “live blogged” assess the pace of live tweets or posts during testimony. If the pace of tweets or posts noticeably slows, it may indicate the testimony is repetitive, not impactful, difficult to understand or that listeners need a break.
8. Social media technologies, uses and mores constantly evolve, keep abreast of the changes.

Conclusion

Hopefully, your next case will not be the subject of media or public interest. If it is, consider Mr. Craig’s insights and these tips to better prepare yourself and your client.

This interview has been edited for clarity and conciseness.

Attorney Scott Malouf helps litigators use social media as evidence and build cases based upon online conduct. He also assists organizations use social media to achieve goals yet minimize legal risks. Feel free to visit his website (www.scottmalouf.com) or follow him on Twitter (@ScottMalouf). Although he loves traditional chicken wings, wood-fired wings are becoming a favorite.