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Stalking a better trial strategy

Social media sites can be an attorney’s best friend for research


By Catherine Martin
Dolan Media Newswires

Trial consultant Amy Singer doesn’t mince words when talking about the need for attorneys to use social media when preparing for a trial.

“That’s the thing with social media: It’s here to stay,” she said. “It’s now a tool. If you don’t use it, you’re an idiot.”

Singer’s well versed in the techniques, thanks to her experience in big cases such as the Casey Anthony trial, in which she delved through thousands of comments to help build a defense strategy.

But even a simple case can benefit from the use of social media as a tool, Singer said, be it a slip-and-fall case, a fender bender or a breach of contract.

“I can’t imagine what we used to do before this,” she said. “Once you get turned on to this, it’s what you do.”

The online identity

Jennifer Bukowsky, a criminal defense attorney in Columbia, Mo., said one of the first things she does when she picks up a case is “immediately screen-save everybody’s Facebook stuff.”

“I want to see what people are saying when they’re all worked up,” she said. “It might be gone in a day. The quicker I get on there to preserve evidence, the more it helps clients.”

But social media sites aren’t just useful when it comes to preserving evidence, Bukowsky said. A profile can reveal a lot of information helpful in building a case, and information on a Facebook page can give an idea of how a witness might present at trial.

“If they’re using all kinds of terrible grammar and profanity, they’re not going to present well if the other side calls them,” she said.

And if she decides she needs to call that person as a witness, she knows she’ll have to spend a lot of time prepping him or her.

Photos, too, can reveal information about alliances and biases, or give character insights that Bukowsky said she could use to rattle someone in a deposition or cross-examination.

“There’s a whole online person you need to be familiar with, too, when it comes to preparing for trial,” she said. “The online identity is part of who they are.”

Knowing about the online identity of a juror is also helpful, Bukowsky said.

“There’s a wealth of information, not just from social media, but everywhere on the Internet. You can find out about people and get a sense of who they are,” she said. “I might end up having a series of questions to try to get an individual to say something to indicate a bias based on information I’ve gleaned from juror research.”

If a case involves a weapon, for example, she might search social media to see whether a potential juror is “a big proponent of the Second Amendment” or favors gun control. She might then ask questions to get a potential juror “to admit they have a bias against people that carry guns.”

Bukowsky recalled a sexual assault case that involved a white accuser and a black defendant. She noticed one potential white female juror had a profile picture with a black man on Facebook, which told Bukowsky that juror “would not have a problem with interracial relations.”

DIY project? It depends

Bukowsky said she thinks online research is something every trial attorney needs to do, whether they do it in house or not. She admits it’s cumbersome, though, and she has others in the office help with the grunt work and suggests other attorneys do the same.

Peter Joy, a professor at Washington University School of Law, said attorneys could reach out to secretaries or others in their offices for help. Larger offices might have an investigator who could help, he said.

“For some of this,” he said, “a person doesn’t have to be specifically trained to Google or check out social media.”

An attorney can opt to bring in a trial consultant, but that comes with expense. Joy said a trial consultant typically enters the picture in a really big case, but not so much if it’s something like a typical automobile accident.

“Unless it’s a very serious injury … probably the amount of money in dispute is not going to be sufficient to support a consultant doing much more than what the lawyer or staff can,” he said.

Singer shared strategies for leveraging social media on your own when preparing for trial.

One tactic, she said, is to set up an anonymous Facebook page as a kind of focus group. An attorney, whose name would not be on the page, might post pictures or pose questions there to start a conversation. Comments on the page can provide insight into people’s thoughts on a case and might reveal a perspective the attorney hadn’t considered. The attorney can use that information to tweak voir dire questions or reshape a trial strategy.

In higher-profile cases, Singer said, lawyers can mine Twitter, Facebook or the comment sections on news sites to find perspectives. Knowing what makes people angry or suspicious can help an attorney decide how to phrase statements or questions at trial.

The anonymity people feel on the Web can be a benefit, she said.

“You’re getting the real deal, without social conformity effects,” she said.

Proceed with caution

Although social media can be a tool for shaping trial strategies, caution may be needed when it comes to clients’ social media use. Bukowsky said her engagement letter for clients includes advice to not post about the case on Facebook during the trial or let other people post to their Facebook page about it.

“At any point, that can be used against them,” she said.

In some cases, she will advise a client to temporarily deactivate his or her account during a trial.

Patricia Lee, director of legal clinics at Saint Louis University School of Law, said attorneys need to be careful about their own use of social media, too. She said it’s important for everyone, including lawyers, to understand that there is no real privacy on social media, despite the illusion privacy settings might create.

“Anything one does could potentially be discoverable,” she said. “Attorneys who choose to use social media need to be aware: Just as you might be aware and discover things others are doing, they can discover things about you, too.”

Lee said lawyers need to be careful in respect to who they connect with online – friending jurors or judges is inappropriate, she said. Be mindful of professional conduct and ethics rules, as well as employers’ policies, she said, and make sure social media use isn’t violating professional rules about advertising.

“As lawyers,” she said, “I think we have additional responsibilities with respect to social media that the general public doesn’t have.”

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