Professionals @High_Risk on Social Media

Pundits swiftly smacked down Rosanne’s recent racist and anti-Semitic tweets, comparing them with New York Lawyer Aaron Schlossberg’s videotaped, racist rant against people for standing in front of him in a line. In a situation, where honestly, blameless people were supporting a local business, Attorney Schlossberg fumed at them shamelessly, calling them undocumented immigrants for inconveniencing him. He went so far as to threaten to report them to “ICE” (the deportation and enforcement branch of the United States Customs Immigration Service (USCIS)).

This has raised a question of whether the “digital divide” is blurring the line between opinionated and derogatory. Have we abandoned the ancient wisdom passed down to us from prior generations?

  • “If you would not feel comfortable saying it to your grandmother, then don’t put it in writing.”
  • “If you wouldn’t want to see it in the newspaper, then don’t say it.” Or,
  • “If you don’t have anything nice to say, then don’t say anything at all.”

Sound familiar?

Of course, the novelty and thrill of seeing one’s opinion in print makes social media platforms addictive. Facebook builds upon the indescribable feeling that getting “likes” simulates. It cannot be understood from a rational dimension separate from the feelings that posts create. There are millions of people on Twitter; rationally speaking, does your opinion even matter? The rational answer is generally no, not even if you’re the President of the United States.

As we increasingly publicize our own views, we simultaneously begin to believe that our views are important. By narrowing our focus on our limited perspective, we may fail to honestly assess the valid opinions of others. We lose our audience. We gain only extreme followers who share our views. As a result, the world around us begins to shrink. Our newsfeed populates with limited perspective.

Like Roseanne or Schlossberg, professionals are the most high-risk population on social media because they can lose their reputation, clients, dignity and prestige from a poorly worded post. As we have the most to lose, we must think twice about what we say, how we say it, and be ever mindful of the risks of posts being conscience-shocking, racist, bigoted, and/or incriminating. Is your opinion perhaps unique only because no one would ever actually say it to their grandmother?

Not only does social media pose a risk to a professional’s reputation, it may put an injured person at risk if they post on Facebook, or put an attorney at risk for attorney discipline or a legal malpractice claim if they reveal client information online. If you or someone you know has a personal injury matter or you are a lawyer with a professional discipline matter, call the Law Offices of Daniel J. Siegel, LLC, the lawyer other lawyers call for advice.

A 94% Percent Success Rate – Wow!

Our firm is unique because many of our clients are lawyers, including firms that you see on TV or on I-95. They consult with us about ethical questions, and they hire our firm to prepare their appeal briefs, answer motions to dismiss and other court filings. We always knew that we won the majority of motions and appeals we handled, but never knew how successful we were. So last year we began to compile whether we won or lost the motions and appeals we handled. We were pleasantly surprised to learn that we won 94% of the motions and appeals we handled last year. Obviously, we don’t win every motion or appeal, but we regularly explain that there is a difference in results depending upon how an attorney presents information. Ask most attorneys, and they won’t be able to say they won 94% of the motions and appeals they handled. We look at cases differently, we write differently, and we use different methods of presenting our clients’ cases, all with the goal that they win their motions and appeals, and get the best results for their clients.

Of course, we use the same techniques for our clients, including our workers’ compensation and personal injury clients. No one wins everything, but winning 94% of our motions sure makes us feel good. The next time someone says all attorneys are the same, and that’s why it’s OK to hire one of those guys on TV, remember that cases are won – and lost – based on how well lawyers handle the various motions and other filings before trial, or on appeal. That’s when you will see the difference at the Law Offices of Daniel J. Siegel, LLC.

The Small Firm Difference – A Freudian Slip of the Tongue That Tells the Truth

We are often asked why a client should hire a small firm where clients speak directly with their attorney rather than a larger firm, with a large staff, large overhead, and levels of bureaucracy?

When it comes to heavily advertised areas of law such as workers’ compensation and personal injury, there may be another enormous difference: many of the larger firms have to feed their seemingly endless advertising budgets and pay for their TV ads and billboards. As a result, their business model (that’s what they call it) requires them to “move” files (in other words, settle cases) rather than fight every case as much as possible — even if that means going to trial, filing an appeal, or merely waiting to settle the case until the best tactical moment. After all, trials, appeals and waiting all take time, don’t generate fees, and don’t pay the advertising agencies’ bills.

Recently, one large advertising law firm included a page on its website in which it said that they “aren’t afraid to back down from any opponent.” That’s right, they are not afraid to back down from an opponent. Well, they are telling the truth. If they fought every case the way they should, it could mean a trial or an appeal, or waiting months until it’s the best time to settle. That’s why they aren’t afraid to back down.

Our office doesn’t have an advertising agency, we don’t have billboards, and we don’t run TV ads. We’re small, allowing us to provide client-focused representation that does what’s right for our clients, even if it means waiting months to settle a case to assure our client receives the maximum settlement.

We aren’t afraid to fight, and we don’t back down.

Insurance companies and defense attorneys know that we go as far as needed for our clients. They know this, and they know that they will have to either fight us, or pay top dollar to settle our clients’ case.

Some firms aren’t afraid to back down.

We aren’t afraid to fight long and hard if we have to. We don’t need to feed the advertising machine. That’s our small firm difference.

 

Authenticating Social Media Evidence Is Harder Than Lawyers Think

Let’s play a game. You’re the judge. Under the following facts, is the social media evidence admissible?

After obtaining a Court Order allowing him to obtain a criminal defendant’s Facebook records, the prosecutor files a motion seeking permission to introduce into evidence the following items:

  1. Screenshots of the defendant’s Facebook account
  2. Various undated mobile and online “chat” messages
  3. A bloody hands photo posted by another individual

So, which items were admissible? Not which items should have been admissible?

The answer: None.

Why? Even social media obtained pursuant to a court order must be authenticated properly to be admitted into evidence. In other words, the prosecutor failed to establish sufficiently that the items were “connected” to the defendant even though the Facebook account in question bore the defendant’s name and other characteristics. The chat messages were excluded because they contained insufficient contextual clues establishing the defendant’s identity as the author to allow them in as evidence.

Pennsylvania Evidentiary Standards for Authenticating Electronic Data

The Superior Court, in Commonwealth v. Mangel, 2018 PA Super 57 (Pa. Super. Mar. 15, 2018), ruled that social media evidence authentication requires, at a minimum:

  1. An adequate foundational showing of its relevance and authenticity, and
  2. Direct or circumstantial evidence that tends to corroborate the identity of the author of the communication, such as testimony, or contextual clues in the communication tending to reveal the identity of the sender.
  3. The admissibility is to be evaluated on a case-by-case basis for an “adequate foundational showing of its relevance and authenticity.”

Direct Evidence such as electronic communications or documents require more than mere confirmation that the number or address belonged to a particular person to be authenticated and used in court.

Circumstantial evidence may include personal knowledge of participants, and verification to authenticate computerized instant messages, cell phone text messages, Facebook posts, and other contextual clues that tend to corroborate the identity of the sender to verify authorship.

So, was Mr. Mangel lucky that his Facebook chats were not admitted? Yes. But, why? Because the Commonwealth did not do its research and obtain corroborating data to authenticate the messages. In fact, no one testified about the veracity of the messages; thus, they were unverifiable.

Of note, as our office has explained to many clients, as well as lawyers attending continuing legal education programs where we speak, social media records and communications can be properly authenticated within the existing evidentiary rules. To authenticate social media chat messages or emails, the proponent (person offering the evidence) must present sufficient direct and circumstantial evidence to establish its authenticity, that the matter is what it purports to be, and/or testimony of a witness with personal knowledge. See Pennsylvania Rule of Evidence 901.

Plaintiffs Must Be Careful Using Social Media When Pursuing Injury Claims

According to recent surveys, two-thirds of all American adults use Facebook, with the majority using it on a daily basis. Social media platforms are ever-growing and changing, with 78% of people under the age of 24 now using Snapchat, and 71% using Instagram. Using these platforms to make statements or post photos has become second-nature for many, and you might not realize the risks of using social media if you are in the midst of a legal battle. If you are pursuing a legal claim, especially for personal injuries, workers’ compensation, or other claims involving physical and emotional injuries, you must be cautious when using social media. Any information that you post may be seen and requested by the other side, and even information you believe is private can be discoverable.

Recently, a Monroe County Court of Common Pleas Judge granted a defendant’s motion to compel discovery, including access to the plaintiff’s Instagram account, in a personal injury lawsuit. In that case, defense counsel offered publicly viewable posts from the plaintiff’s account that seemed to show physical activity inconsistent with her alleged injuries. The facts of that case are particularly interesting because while the plaintiff’s account was publicly viewable at the time of the offered posts, she had since changed her account to private. The Judge determined that full access to the account, which plaintiff had previously denied existed, was relevant to verifying the extent of her injuries and rehabilitation.

If you are in litigation or considering pursuing a claim for injuries, you should refrain from communicating about your case or disclosing anything on the internet or social media. While you do not need to stop using social media or the internet altogether, you must be very careful about what information, videos, photographs, and so on that you post online. Like the example above, photographs and other posts can be used by the other side to argue that your injuries have not prevented you from certain activities. In addition, embarrassing or profane materials could be used to try to attack your character.

We regularly represent injured persons, and we always advise our clients of the implications of social media use when pursuing claims for workers’ compensation or personal injury matters. If you have been injured in an auto accident, slip and fall, work-related, or other accident, call our office at 610-446-3457 to set up a consultation with our attorneys. We can guide you through the process, and advise you about what you should expect and consider when pursuing your claim.

 

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