The Use of Social Media in 21st-Century Litigation

Recently I traveled to Birmingham, Ala., to attend a Symposium titled "The Use of Social Media in 21st-Century Litigation," hosted by the American Journal of Trial Advocacy. It was held in the moot courtroom of the school of law, and was well attended: probably more than 200 attorneys and law students in all.

The Symposium was a precursor to an article that will be published this spring on social media issues in the American Journal of Trial Advocacy. It consisted of two panels and one keynote speaker. The presenters were very knowledgeable and the moderators kept the discussion relevant and at a good pace.

Panel One, “Pretrial and Discovery,” was very practical in its application and instruction. Each speaker was given 10 minutes to present, which was followed by a panel discussion with some Q&A. The panelists included:

  • Judge John L. Carroll, dean and Ethel P. Malugen Professor of Law at Cumberland School of Law
  • Steven C. Bennett, partner at Jones Day (New York)
  • John G. Browning, partner at Lewis Brisbois Bisgaard & Smith (Dallas)
  • T. Roe Frazer III, attorney and managing executive for Digome and Cicayda (Nashville)

Here are some of the nuggets that stuck with me from the session:

  • Frazier noted that three quarters of internet users use social media or blogs every day, every app is social media and “social media is like an uber-diary.”
  • Browning continued along those lines, stating that this ‘diary’ consists of what you’ve been doing online, where you’ve been and where you’re going.
  • Bennett mentioned that “Twitter has over 400 million users per day (2012)” and that “competent representation includes knowing about and pursuing social media.” He cautioned us by stating that “there is a ‘wayback’ machine coming for social media similar to the current internet ‘wayback’ machine and because of this nothing is ever erased.”

Something to consider before posting anything on social media.

The keynote speaker was The Honorable Paul W. Grimm, District Judge for the United States District Court for the District of Maryland. His talk and his paper were focused on authenticating social media at trial. He stated that “social media shows state of mind and authenticating social media gives practitioners the most difficulty.” His talk was both informative and entertaining. Attendees could tell he was looking for a case where he could expound on the steps necessary to authenticate social media.

The second panel was moderated by The Honorable John E. Ott, chief magistrate judge, United States Northern District of Alabama, and the following panelists:

  • Dr. Cathy Parker, professor of journalism and mass communication, University of North Carolina, Chapel Hill
  • Eric P. Robinson, professor at City University of New York Graduate School of Journalism
  • J. Paul Zimmerman, attorney at Christian & Small (Birmingham, AL)

Panel Two was entitled “Issues at Trial.” These issues related to First Amendment rights to know what’s going on in the courtroom versus the use of social media. The discussion covered the use of social media by journalists, the public, the jury, the lawyers (voir dire) and even the Judge. The topics ranged from the annoyance of hearing someone typing on a laptop, to the invasion of privacy of jurors, to whether you had to notify someone that you were investigating them via social media. It ended with whether it’s appropriate or not for a juror to friend the Judge on Facebook.

I’ve presented on this subject several times myself, and our discovery teams are seeing more and more of it with each passing review. But as this panel reminded me, there’s no such thing as being “up to speed” on social media – the ways people interact and communicate keep changing, and there are always new vendors and tools that are adjusting to deal with these platforms.

In many ways it’s a nightmare for our clients to manage and regulate, so to speak … but it’s not going away, that’s a certainty. Events like these are a great way to hear how others deal with these challenges and where they anticipate issues down the road.

Each of the panelists and the keynote speaker wrote articles that will be published this spring in the American Journal of Trial Advocacy. This would make a good addition to your law library.