How Facebook Can Win or Lose Your Lawsuit For You

Let’s face it: social networking is fun. We stay in touch with friends flung geographically far and wide, and we reconnect with friends from summer camp, college, and even kindergarten. We make witty comments in our status bar, witty comments about our friends’ statuses, and even wittier comments on those wonderful photos posted everywhere. We comment on political statements, join groups and become fans of things, and write posts about things we feel are important. We even write posts about things that aren’t so important, but that we think are hilarious at the time. We post family photos, high school reunion photos, and photos from parties.

Oops. Rewind.

Photos from parties? She doesn’t remember behaving the embarrassing way that picture depicts her, so maybe she should be reminded!

Reunions? He kissed his old girlfriend and now his wife wants an divorce!

“Witty” comments? Those can be taken any number of ways. And what if we – dare we even think it – get into smackdown-style ripostes with people who get on our wrong sides?

When we are in the midst of litigation where our characters may be an issue, social networking sites are Not Our Friends. Unless, of course, the Other Party’s character is the big issue and they have neither read this article nor taken its advice. Then we love social networking web sites. That’s because lawyers have subpoena power and are not afraid to use it in the quest for elusive evidence that will help win their clients’ cases.

Within the last few years, as more and more people from teenagers to grandmothers register with MySpace, Facebook, Twitter, Flickr, YouTube, Bebo, and any number of other social networking sites, personal information has become easily obtainable on the web. The personal information that these sites protect includes things like credit card numbers, telephone numbers and email addresses. They do not protect the information users carelessly put out in public for anyone to see.

The things that lawyers either love or hate these sites for are the things people do not bother to hide. These are things like how much a person drinks, who they kiss, who they are sleeping with, what social activities they enjoy, what clubs they belong to, what their political leanings are, where they hang out, where they were on a certain night.

Why would a lawyer care about these things?

I’ll tell you why.

Scenario 1:

Bob has come to Lawyer seeking custody of his two children, ages 4 and 7, who live with their mother, Candy. Bob tells Lawyer all kinds of horror stories that his kids have told him about their mother, none of which can be proven in court because (1) judges hate it when young children testify, and (2) it’s hearsay unless they do.  Bob tells Lawyer that Candy has a Facebook page.

Lawyer checks out Candy’s Facebook page, either through Bob’s account or through a third person who is a contact of Candy’s. It turns out that Candy is either a fan or a member of the following groups, among others: NORML, Facebook Sluts, Drugz Rule, and assorted others in the same vein.  On the wall of the group Heroin, Candy posted this comment: “ i think it should b legalized, its ur choice to do it…not anyone elses. It takes away depression nd i dont c wat the big deal of it.” On the wall of the Sex Workers of Pulaski County group, she posted, “i have sex with anyone that pays!” Candy has been tagged in a number of photos with her breasts bared, and apparently extremely intoxicated. She has posted at least three photos of her children riding in cars without seatbelts or car seats. One man posted to her wall, “Last night was gr8 babe but next time dose the kids with something to make them sleep.”  Her reply was, “sry benedryl usually works nex time i use codine.”

Bob makes screen shots of the pertinent posts for his lawyer and continues to deliver posts similarly devastating to Candy’s case on a regular basis. Lawyer files motions asking that Candy be immediately tested for both drugs and sexually transmitted diseases, both of which are positive. At the final hearing, all of these posts are presented as evidence. Candy has no choice but to admit they were made by her.

Guess who wins custody?

Scenario 2:

Joella is injured in an automobile accident. She has filed suit against the person who drove the other car, and who was at fault in the accident. Months and months pass, during which Joella still claims not to be able to walk more than about twenty yards at a go, and claims that she still cannot sit or stand for any significant period of time. Finally, at her deposition, a year after the accident and with her still claiming not to be any better, the other driver’s lawyer pulls out a photo that was posted to Joella’s Twitter account via TwitterPix. It is of Joella  in her snow-bunny outfit sitting on a ski lift. There are about twenty more pictures, all posted to that account over the week of Spring Break just three months after the accident. The accompanying Tweets make it clear that Joella not only had a great vacation on the slopes, but danced the nights away that week in Vail.

Her settlement is substantially lower than she had hoped.  In fact, it does not even cover her medical bills since she continued going to therapy claiming to be in terrible pain long after that ski trip.

Scenario 3:

Because they like crowds and many participants at their events, a group of drag racing enthusiasts posted their plans to hold illegal street races to a web site. They did not realize that police had discovered the web site a couple of weeks before, and to their dismay, on January 15-16, 2010, four of the racers were arrested. The police had staked out the location of the race. Yes, this really happened.

Scenario 4:

Remember the riots after the NBA championship game in Los Angeles last summer? Police used YouTube and Flickr to identify people involved in riots following the June 14, 2009 NBA Championship.

Scenario 5:

You don’t have to be the one who posts anything.  Like the looters and rioters in Los Angeles after the Lakers Championship in June 2009, people with cellphones took photos and videos of a fight in Suffolk, Virginia, that led to the arrest of the participants. The videos were uploaded to YouTube.

We’re starting to see this a lot in the employment law arena – e.g., employees calling in “sick” and then boasting on Facebook about the things they did while out – like drug use, vacations, etc. Surprise! – they get fired for it.

And what about the 17 year old Buffalo, NY girl who killed her boyfriend in a drunk driving accident, then a month later went on a beach vacation. Upon her return to New York, she posted a picture captioned “Drunk in Florida” to her Facebook page. How could she be surprised when the judge essentially threw the book at her at her sentencing?

I don’t think that, in general, this generation does things that are any more reckless or stupid than what many of us did in our youth (although this particular case is obviously egregious), but why would anyone what to publicize their stupidity to the world?

As for why people share these things with complete and total strangers (or just anyone, without restriction, who wants to see them), they either don’t know how to adjust the privacy settings on their accounts, or they’re naive enough to think that those whom they’ve granted “friend” status on a social networking site don’t include people who are just waiting for the chance to rat them out. It seems as if some are absolutely inviting the police to catch them at their illegal activities.

As LAPD’s chief detective Lt. Paul Vernon said as the riot arrests last June mounted, “It’s nearly impossible to stay anonymous in this age of cell phones, video, and social websites; and that’s a good thing, if it holds people more accountable for their behavior.”

The moral of the story is to behave always as though your worst enemy is watching. Chances are, he is.