In today’s world many people use social media such as Facebook, Twitter, Instagram, and so forth to keep in touch with family, friends, and coworkers. This has had many beneficial effects. It has made it far easier for all of us to keep in touch with, or even reestablish contact with, old friends, colleagues, and family members. Businesses as well as individuals use social media for everything from advertising to simply publicizing company events. Coworkers often “friend” one another on Facebook, or follow one another on Twitter. These are things that did not exist much perhaps twenty years ago, but in today’s world they are ubiquitous.
A characteristic of social media postings is that they never go away. Never. Even if you delete a posting, there are ways, well-known to attorneys, to recover nearly any social media posting. How often we all see news articles about intemperate Twitter postings for example which the sender quickly deleted, but nonetheless are there for all to see?
Social media postings can be valuable evidence at trial. People often post things on Facebook or elsewhere when they are angry, or wish to vent or “lash out” about something. This is frequently in the news; for example right now many unfortunate social media postings of the Defendants in the FTX financial scandal are coming to light — unwise admissions about drug use and worse, all of which will surely show up as evidence at trial. If a matter ends up going to litigation it is almost a certainty that relevant social media postings will become evidence at trial or arbitration. Buffington Law Firm’s trial attorneys have seen this repeatedly. And often times social media postings include material that no lawyer representing the person would have wanted to see posted, or approved.
Social media postings are almost always admissible as evidence at trial. For litigants they are admissible as “statements of a party.” For third parties they are statements about which the person can be questioned at trial and authenticated. The judge or jury is very unlikely to doubt the authenticity of the posting.
An important thing to know about social media postings is that judges and juries believe their own eyes. There are few things more persuasive than “the written word.” Witnesses often contradict one another about what was said, or try to put a positive spin on what they themselves may have said or meant in a heated or unguarded moment. Social media usually removes any doubt as to what was said, and judges and juries will surely make up their own minds about the meanings of such postings. Spin becomes difficult if not impossible.
The takeaway from this is that social media, while valuable and often enjoyable, is not harmless. The wise person will never engage in social media postings about a matter that has any kind of litigation potential. Just as you would not discuss sensitive litigation matters with strangers or even friends, posting on social media can be indiscreet and unwise.
If you are involved in a living trust, business, or real estate dispute Buffington Law Firm invites you to contact us for a Free Legal Consultation. All consultations are with an experienced trial attorney and are fully protected by the attorney-client privilege.