On May 13, 2011, I attended a session on construction defect litigation and social media, presented by Dan Berman and Steve Henning. The session was part of the continuing legal education offered by West Coast Casualty’s Construction Defect Seminar at the Disneyland Hotel in Anaheim, CA. Berman and Henning are name partners with noted construction defect defense law firm Wood, Smith, Henning & Berman. I arrived a few minutes late, but was able to catch the majority of their presentation. The full name of the presentation was, “Internet and Social Networking Sites: Ethical and Practical Issues in Investigation, Litigation and Winning Your Construction Defect Case.”
When I received the conference schedule, this was one of two sessions that I did not want to miss. After all, I run one of the only blogs regularly covering construction defect litigation that isn’t biased towards one side or another. Without reading up on the proposed topic by Berman and Henning, I assumed that this was going to be a watershed moment for our little cottage industry. In my mind, this was going to be the spark that would inspire my colleagues to Engage with one another via social media in order to further the conversation and sharing of knowledge.
I was wrong.
Here is the opening paragraph from the handout accompanying the presentation:
During recent months, we have watched events unfold around the globe that are directly linked to the power of social networking. Powerful regimes in Africa have been toppled, fueled by powerful images and video shared via Facebook and Twitter. Closer to home, people regularly receive photographs, status updates and whereabouts of acquaintances from a variety of social networking sites. While these sites allow people to connect with new and old friends, it also creates a contemporaneous, discoverable record whereby people are sharing intimate and potentially incriminating details of their lives.
The presenters mentioned that 83% of lawyers use LinkedIn, according to one study. And while they mentioned briefly that the majority of those lawyers use social media as part of professional networking and client development, the point of this talk was not about networking and client development. To me, the message centered around two main concepts:
- Be afraid. Be very afraid of anything you post online.
- Don’t think twice about exploiting social media to gain evidence to use against your opponents in litigation.
“Mining” Social Networking Sites for Evidentiary Gold
Berman and Henning provided a couple of examples of both positive and negative ways social media could be used as evidence in litigation, including numerous well-researched citations to current legislation and case law. The one example cited having to do with construction defect litigation involved a case in which the presenters’ firm represented a builder-defendant. The homeowner-plaintiffs alleged numerous defects led to mold which caused a number of financial and health setbacks for the family. The star witness for the plaintiffs was the teenage son of the homeowners. He claimed his social life was in ruins, asthma had ruined his athletic participation, and mold even had affected his mental abilities causing him to fall behind in classes ruining his lifelong goal to become a dentist. Unfortunately for the youth, his MySpace page was publicly accessible and contained photographs (shown to attendees at the conference) of the youth smoking a hookah and doing keg stands. Although the evidence was not admitted, the lawyers made sure that the teenager knew they had the evidence, causing the youth to recount some of his false testimony. The end result was a verdict for the defense.
Did the presenters state anything that was false or inaccurate about social media? No. In fact, because many of the attorneys in construction defect are a little behind the times, their message is vitally important. A lawyer that does not avail themselves of every tool at their disposal risks not providing their clients with the representation they deserve.
Perhaps an unintended impact from the presentation was to dissuade attorneys from using social media for its intended purpose – connecting with others. Following the session, I spoke casually to a handful of attorney friends. Their reaction was one of fear. “I’m shutting my Facebook account down right now,” one said. “Is LinkedIn worth it?” said another. Then another attorney began talking about how they gained access to their teenage daughter’s Facebook profile and surreptitiously used it to spy on a boy at the same high school.
In the tech world, we have an acronym for this sort of rhetoric: F.U.D.. It means Fear, Uncertainty and Doubt. FUD is a powerfully persuasive tactic, albeit one that runs completely counter to the direction that business is heading at present.
Social media is a buzz word that just refers to a means of communicating. If you send a letter to someone, it can be used as evidence (in most situations). If you have a conversation with someone that you allow to be recorded, that recording can be used as evidence. Is it somehow surprising that if you post something online that it too can be used as evidence? I know a lot of attorneys and they are all very careful, due to years of conditioning, about anything they say or write. Applying the same prudence to social networking sites seems like a no-brainer.
What’s the Point?
Construction defect litigation throughout the country is in a state of flux. Legal developments, insurance coverage, economic factors, etc. all contribute to this dynamic niche of the legal world. Another legal niche that is also in a constant state of flux is intellectual property (IP) law. Legislative changes, case law, and numerous other factors mean that the “rules of the game” are constantly changing. Unlike construction defect litigation, there is a vibrant and growing community in IP law connected and sharing information via social media. This includes blogging, services such as Twitter and Facebook, discussion boards (some private) on sites like LinkedIn and Quora, and others. This sharing of knowledge and information is improving the collective understanding of intellectual property issues.
By not participating in the larger conversation and contributing to the collective knowledge, construction defect litigation professionals are doing a great disservice to the clients and end-users that are most impacted by construction defect litigation. Property owners, developers, contractors, designers and insurance carriers may have unrealistic expectations. Knowledge is power. By empowering your clients you gain respect and trust.
Burying your head in the sand for fear that the sky might be falling, is no way to go through life, counselor. You may not feel comfortable setting up your own blog or running a Facebook page for your law firm, and it may not be necessary or prudent. But if you want to be seen as a leader in the industry and gain respect and trust, not only from clients, but also from peers and opposing parties, take a risk and join the legion of legal professionals outside CD that are moving the conversation online. We need your input and insight.
Come on in – the water’s nice.
Note: Just to be clear, I think Dan and Steve did a great job of covering their topic. Their presenting style was top notch and they really did an impressive job of working together and used great visuals. The information presented was well-researched and very informative. I just wish that there could have been more discussion about the benefits of social media for the legal profession, an area where construction defect attorneys are woefully behind.