Monthly Archives: October 2010

Social Media Creates New Quandaries

Law Technology News had a couple great articles this week regarding the state of law and social media.  The first was about a Pennsylvania court that opened the door to discovery of social networks. The second article concerned the ethics of advising your client to make their social networking private. Of course, the ethical discovery of information from social networks is not a settled –  far from it.  As a colleague of mine aptly stated: inconsistency is the rule.

And more than the article itself, it really drives home that Web 2.0 is here to stay and its effects are being felt in all areas and practices of law.  As if things weren’t unsettled enough when it comes to law and technology issues, foursquare, Facebook and Twitter only make the muddled waters murkier.  From friending’ judges to the admissibility of evidence from Facebook and MySpace, it seems like new legal issues involving social media spring up daily.

Yet, many attorneys remain utterly clueless when it comes to even basic e-discovery issues, let alone dealing with evidence from social networking sites.  I went to a lecture last month where less than half of the room knew what ESI was – and there were over 120 attorneys in the room.  That’s kind of scary! If attorneys don’t know what electronically stored information is, how are they supposed to be able to utilize this wealth of evidence to zealously defend their clients?

Obviously, not every case will involve evidence from a social network.  However, I have already seen this type of evidence used in employment law, personal injury, family law, and criminal law cases.  The bottom line is that there is a wealth of information online and it can be found and used ethically at trial if the right steps are taken.

So should you advise your client to change their privacy settings to protect certain information?  Like any legal question – especially one involving technology – it depends.  It depends on your jurisdiction, at what point in the case you are, and your client’s privacy settings.  So think about all the facts and do some research before you make this decision.

In regards to the discovery of this information, it appears that courts will generally treat information on social networks as being more public than email and other ‘private’ two-way communications.  This commentary on a recent California case Crispin v. Audigier comes from Doug Cornelius of the Compliance Building blog:

The judge found that webmail and private messages are inherently private and quashed the subpoena for those messages. With respect to the subpoenas seeking Facebook wall postings and MySpace comments, the decision will be dependent on the person’s privacy settings and the extent of access allowed. If the general public had access to plaintiff’s Facebook wall and MySpace comments then presumably they are subject to discovery in civil litigation.

And can you already imagine how foursquare will be employed by attorneys? Foursquare is a location-based social networking website, software for mobile devices.  In early 2010 a site known as Please Rob Me was launched. Please Rob Me ‘scrapes’ data from public Twitter messages that have been pushed through Foursquare. While the name sounds nefarious, the  stated purpose of the website is to raise awareness about the dangers of revealing too much information online.

Here are further resources I have compiled for you:

Judge Grants Discovery of Postings on Social Media

Social Networks and Personal Injury Suits

Would You ‘Friend’ the Judge?

Pa. Court Opens Door to Discovery of Social Networks

Are Facebook and MySpace Messages Subject to Discovery?

How Private Is Facebook Under the SCA?

Romano v. Steelcase: Defendant Granted Discovery of Plaintiff’s Facebook Profile

Survey: Judges Split on Their Use of Social Media

Cyberbullying … A Sign of the Electronic Times

‘The law is a powerful thing, but the law doesn’t always change what’s in people’s hearts.”

This quote comes from “A Conversation With President Obama,” a forum organized to discuss issues with the President that are important to young voters.  Like any political forum these days, the event began with a wide-range of questions that focused on the economic downturn, the controversial stimulus package, and bipartisanship on Capital Hill.

However, it wasn’t before long that the event turned another nefarious direction, onto a topic that is quite distinct to young people – Cyberbullying. One of the students in the audience – a junior at the University of Maryland – revealed that she has been a victim of harassment on the Internet. After the recent spate of teen suicides coinciding with the return of school, the student wanted to know something that I have been asking myself: is there anything that can be done to stop this online harassment being endured by young people? Especially after reading that a 33 year-old woman was cyberbullying a dying 7 year-old girl.

You have to stop and ask yourself what is wrong with people?  But is this just a moral issue – or is it truly a legal issue? I am now the father of a three-year-old daughter, and I realize that she lives in a different world than the one I grew up in.  Sexting and cyberbullying didn’t exist thirty years ago – hi tech was having an Atari and Pacman.

The bottom line is that technology has changed the way that kids interact with each other and today’s children are much more electronically connected and computer savvy than we will ever be – they are the true digital natives as my colleage Warren S. Reid likes to say.

Here are the numbers:[1]

  • Since 2005, cellphone use by children has increased by 68%
  • 36.1% of 10 and 11-year-olds have cellphones
    • 88.1% use them for basic communication tasks (calling parents)
    • 68.1% for calling friends
    • 55.7% for emergency purposes
    • 54.1% for  text messaging

And cyberbullying just happens to be an unwanted part of our new brave electronic world.[2]

  • 58% of kids admit someone has said mean or hurtful things to them online
  • 53% of kids admit having said something mean or hurtful things to another online
  • 42% of kids have been bullied while online

However, cyberbullying is something that is very difficult to put a finger on.[3] First, it is extremely hard to define the conduct that constitutes cyberbullying.[4] Second, it would also be very difficult for law enforcement and schools to enforce cyberbullying penalties. Last, cyberbullying is just an extension of the regular bullying that most of us endured in school, and many cases are just typical bullying with an online component.

In regards to my first point, these are the forms it takes:

  • A threatening e-mail
  • Nasty instant messaging session
  • Repeated notes sent to the cell phone
  • A website set up to mock others
  • “Borrowing” someone’s screen name and pretending to be them while posting a message
  • Forwarding supposedly private messages, pictures or video to others

In regards to my second point:[5]

Cyberbullying, while similar to traditional harassment, does have a different quality — namely, humiliating rumors and vicious taunts can be viewed by millions online and they can never be removed from the Internet. Cyberbullying laws are useful to the extent that they draw attention to this problem, but it is important that laws are crafted in a way that is informed by research, not singular high profile incidents.

The vast majority of cyberbullying incidents can and should be handled informally: with parents, schools, and others working together to address the problem before it rises to the level of a violation of criminal law.

Certainly, tragic incidents like suicide, thrust cyberbullying (and traditional bullying) into the public discussion. Prosecutors are forced to shoe-horn these incidents into existing statutes, and in some cases this is not done consistently or even appropriately.

And lastly, many of the cases that garner headlines aren’t even cyberbullying cases – they are merely harassment cases with an online component. I think the case that catapulted the topic into the headlines wasn’t even a case of cyberbullying.  On September 22nd, 18 year-old Rutgers Freshman Tyler Clementi jumped from the George Washington Bridge into the Hudson River in an apparent suicide.  Three days earlier two schoolmates had surreptitiously streamed Tyler’s intimate encounter with another man live on the Internet through a camera in his dorm room.

The prosecutor’s office stated that roommate Dharun Ravi and classmate Molly Wei – both 18 years-old – had each been charged with two counts of invasion of privacy for using “the camera to view and transmit a live image.”[6] The most serious charges carry a maximum sentence of five years.

However, while this case garnered national attention, it isn’t truly a case of cyberbullying.  This shows just how hard it is to define the underlying conduct, and how it differs from traditional harassment.  One last observation is that cyberbullying is very result dependent.  If Tyler Clementi doesn’t commit suicide, would his two roommates even get punished for their actions?  If there isn’t a suicide, law enforcement and school officials and don’t seem too concerned about it.  Often, the victim of the bullying does nothing to prevent it until they are harassed to the point of suicide.

Mr. Obama is correct in asserting that the law cannot change what’s in people’s hearts.  But should our laws be amended to change people’s attitudes and protect kids? What are your thoughts?

[1] According to New York’s Mediamark Research and Intelligence (

[2] Beware of the Cyber Bully

[3] Cyberbullying, which is sometimes referred to as online social cruelty or electronic bullying, has been defined as “an aggressive, intentional act carried out by a group or individual, using electronic forms of contact, repeatedly and over time against a victim who cannot easily defend him or herself” (Smith et al., 2008, p. 376).

[4] This makes enforcement extremely difficult and also make it very difficult to finely craft statutes that would pass Constitutional First Amendment muster – namely not vague or overbroad.

[5] Cyberbullying Research Center

[6] Private Moment Made Public, Then a Fatal Jump

MCLE … More Than Just a Necessary Evil

MCLE … I am sure that the sound of that acronym makes many of you cringe in your seat. To many of you, Minimum Continuing Legal Education is simply an evil necessity that must be done to keep your law license.  How do I know?

As Director of Legal Education for an online CLE website, I get frantic calls and emails from many of you stating that you are almost out of time and you need to get your units done in a hurry.  Usually the calls start coming in from Texas and New York the last month before the MCLE deadline – as many as three to four months in big states with one MCLE deadline every year.  By the last week of the month things have hit a fever pitch.  And in January – California has a February 1st MCLE deadline – the phone rings off the hook.

I know that attorneys are notorious procrastinators due to their workload, and many of us know everything already!!  However, I am amazed at how many attorneys still treat CLE as a necessary evil, just something that must be done in order to keep your State Bar happy.  Especially in today’s digital times when society and the law have become so complicated.

For example, we videotaped an e-Discovery Seminar with our partner the North County Bar Association here in San Diego a few weeks ago.  I am still completely amazed at how many attorneys don’t know what ESI stands for.[1] After the 2006 Amendments to the F.R.C.P., e-Discovery became the law of the land at the federal level.  To date, thirty states have also adopted standards that are almost entirely similar to the federal amendments. And practically speaking, I just don’t see how you can ignore this evidence since it’s ubiquitous.

Now, I am not saying that you need to be an e-Discovery expert, but I don’t see how you can just completely sweep the topic under the rug.   We now live in a Digital World – there is electronic evidence everywhere … and this evidence can either be used to the benefit or the detriment of your client.  And as the bench catches up and becomes more technologically proficient attorneys will only be held to a higher standard.  This is the subject of one of my MicroSeminars e-Discovery & e-Competence.

I have gone out of my way to select courses that will benefit you in your daily practice, not just because you have to take them as part of some requirement.  These courses will make you a more knowledgeable, more efficient practitioner.  For example, we have great resources such as Email in Litigation: Digital Evidence Made Simple, Cybersleuthing for Legal Practitioners, Writing for the Trial Court, and Law, Ethics & Technology: E-mail, Metadata & Electronic Storage.  And we are just about ready to post an incredibly comprehensive course on the state of e-Discovery entitled Do’s and Don’ts of Electronic Evidence: A Review of the Rules of Evidence.  Currently, we have over 250 hours of CLE programming to choose from in California – all online at this point in time.  Many of these courses can increase your competence in a number of practice areas and benefit you in your professional practice.

The true beauty of online CLE is price and convenience.  Because we have leveraged technology to its fullest extent, we are able to bring you a better product at a better price – all on your time.  With online CLE you could take one class every month from the comfort of your living room or office … and still have enough courses to fulfill the MCLE requirement of your state.  MCLE doesn’t have to be a necessary evil – our goal at Attorney Credits is to make CLE a truly invaluable resource.

[1] In case you are one of those people, ESI stands for Electronically Stored Information … and it can make or break your case.

The Power of Online Video

In our continued attempt to reach out to attorneys around the country (and the globe!) through social media I have become a member of a number of LinkedIn Groups.  From Legal Blogging to Legal Innovation, there is a group for many types of legal interests and there is definitely some very hearty online conversation taking place.

I started an excellent discussion last month on the power of online video when I posed the question “How can online video be used in attorney/firm marketing.”  A few years ago we really envisioned the power of online video and what it means to education and CLE (For an excellent read, please visit BaranCLE for a great blog post that founder Tim Baran and I collaborated on).  With the Web going to video, establishing a video presence online will only become more important in the coming years.

To date, there have been over 70 comments … and the discussion continues.  Some of the most poignant comments come from a New York medical malpractice trial attorney Gerry Oginski:

So how can you use video to set yourself apart from all your colleagues? Simple. By creating educational video. Remember, viewers don’t care where you went to school. They only want to know how you can help them solve their legal problems. If you can show your expertise, without you having to say “Come to me because I’m an expert,” then you will, more than likely, get that call, compared to the attorney who has a static website.

The really cool thing about video is that it allows you as an attorney to bring out your personality so that viewers who do not know you get to meet you (virtually) and begin to trust you. If you provide content that they need to know, you will get that call.

Please take a look at Gerry’s website and video blog and some of his informative videos.  I think it is an excellent example of how video can be used to interface with potential legal consumers and provide them with the answers that they need in their quest to find legal information and services.

Here are some other key points to consider that were presented by the group:

Who will your target market be?

A lawyer or a firm could promote itself by providing a “mini video seminar” on specific issues that may be of interest to small businesses or individual.

The key to video is to talk about the client’s problems.

I have used and will be using a lot of video and am amazed at how many new clients, prospective clients and current clients watch the various videos and tell me as well about them.

Creating a site that showcases volunteer organizations or charitable organizations, for example, is worth using video. If an event for a charity or a worthwhile cause is coming up, help to promote it using video.

One of the most incredible benefits of using video to market your practice is that an online viewer gets to see you, hear you and importantly, begin to trust you before they ever pick up the phone to call or walk in your door.

The key when creating attorney videos is understanding what information your online consumers are looking for. Once you have figured that out, then you will have tons of content to create for them.

“You can really trust a faceless company/brand.” – sarcasm – you can’t really trust them.”

And here are some pitfalls that group members feel are important to avoid:

Believing that video is magic. It isn’t. Just “doing video” is more likely to hurt than help.

Believing that it’s all about you. It isn’t. Your video must quickly convey trustworthiness and competency. You are the only one who cares about you. Potential clients want to know, “Can I trust this guy, and what can he do for me?”

Believing that potential clients just love video. No. They want information. Put it in front of them via video; don’t expect people to search around your site to find the videos.

And some examples of how attorneys/firms are using video:

I would love to hear your feedback – either on our blog or please take part in the LinkedIn discussion here.