Category Archives: Facebook

 

November 17th, 2010

Demand for Facebook Records Rejected by NY Appellate Court

The defendant in this car accident case wanted an authorization for the plaintiff’s Facebook account. And a New York appellate court has shot down that demand, for now, in a ruling just released and published in today’s New York Law Journal.

In McCann v. Harleysville Insurance, the plaintiff had successfully obtained the entire insurance policy of a motorist involved in a collision, and now sought the “supplementary uninsured/underinsured motorist coverage” from her own insurance carrier. The insurance company decided it might get lucky by snooping around the plaintiff’s Facebook account, and therefore demanded the plaintiff provide an authorization permitting them to obtain the records.

No dice, said the appellate court, which affirmed a similar decision of the court below. The problem? The defendant had no actual basis for doing said snooping, as it “failed to establish a factual predicate with respect to the relevancy of the evidence.” This was, in the words of the court, simply a “fishing expedition.”

This issue came up just a month ago in Romano v. Steelcase, in which a lower court had ordered the authorization for the Facebook account to be given. In Romano, however, a factual predicate had been established when the court felt the testimony at deposition contrasted with a photograph seen on the plaintiff’s Facebook page. The court wrote:

it appears that Plaintiff’s public profile page on Facebook shows her smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed. In light of the fact that the public portions of Plaintiff’s social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action.

While I think the evidence shown in Romano is rather thin to be delving into the Facebook account (and perhaps an appellate court will one day agree with that assessment), it seems clear that the evidence shown in McAnn is simply non-existent.

Thus, for now, there are two New York cases on the subject, one in the lower court and one appellate, and the existing dividing line is on the need for a factual predicate to delve into the accounts.

See past coverage of the Romano case and this issue:

 

October 20th, 2009

The Unseen Danger of Social Media (Twitter, Facebook, and More)




The marketers and promoters love social media. They just don’t talk about the hidden risk. They think every lawyer should be involved and that those not involved just don’t get it.

All I ever seem to read is how great it is for connecting with others and drumming up business. But never a word about how it can kill business.

Yes, social media such as Twitter and Facebook can kill your business. And it’s better to learn that lesson now than later. Lawyers can lose clients, or simply miss the opportunity to be retained.

I saw this today when I Googled myself. I did this after Scott Greenfield wrote a piece that created abundant commentary, centering on the fact that he types his posts up with exceptional speed, but never edits. Anyone that reads his Simple Justice can see this in many a post.

And I wondered, if a potential new client was given my name by another, and that person Googled me, what would they see?

Well, the first page of my results shows three separate social media sites: Twitter, Facebook and LinkedIn. They show up there despite the fact that I’ve not exactly been the biggest user of those sites over the last year. (My opinion that Twitter stinks remains unchanged, though I continue to drop links into it when I post something new here.)

So this is what the potential new client will see, even if you have an active presence on the web. Since I’ve written over 800 posts in this space since I started in November 2006, and received thousands of inbound links, I probably fit the definition of active presence. And yet, those three sites still manage to crowd out links from so many others.

So if social media sites will be on the first page of what your potential client sees, then those sites must be appealing to the client. And by appealing, I don’t mean that you have to strut your legal stuff. Rather, you have to make sure you don’t turn off the client.

And that’s the danger; turning off the potential client by prattling away with all types of trite tidbits that only the most devoted of significant others could care about. Is this what you want your new clients to see? Because if that is what you are typing, that is what they will see.

And not only will they see it, but they will see when you wrote it. Ten posts written during business hours will make a client think two things:

  1. Why is the lawyer writing about this stuff during work hours? I want a lawyer that is busy with a good book of business. (Crowded restaurants are usually crowded for a good reason; empty ones usually empty for a good reason.)
  2. Will the lawyer be Twittering instead of working on my case?

The same risks, of course, may exist for blogs. And it is one that I often think about when writing. (For the record, I generally write at night or in early morning, but can edit the time stamp. I’ve composed many a post in my head while going for early morning runs on taking the train to/from the city.)

While many lawyers write with the hopes that future clients will read their stuff, I often fear it, particularly when going off topic. It is that fear of clients reading my words that makes me kill many a story before it gets published. It may be one too many that goes off-topic or it tackles a subject in a way that just turns people off. Personal attacks on certain people, for instance, can easily lead to backlash.

But at least I know that if I write something dumb, it will be quickly buried on the blog and (hopefully) forgotten in two months time. That won’t happen as easily with the big social media companies though. Those links, which likely contain “fluffier” stuff than a law blog would handle, will be right there on page 1 of your results. And you may lose the biggest case of your career because the client went elsewhere. And you never even knew.

And one last thing to think about, since someone somewhere will holler, “But there are privacy options that allow me to shield the public from seeing my Facebook page!”

Sure there are, but what will you do when a current client asks to friend you Facebook? Insult them by saying no?

It’s often been said that you should never write anything that you are afraid to see on the front page of the local paper. The story of Flea made that clear.

But let’s take that one step further: Never write anything that you don’t want your clients to see. Because you may not get to keep them as clients.