One aspect of my legal practice that has changed over the years is the amount of time I focus on my clients’ social media use, as well as investigating an opposing party’s social media accounts. The reason for such attention is simple; it is often a goldmine for inconsistencies, admissions, or even outright lies that can make or break a case.
Trump, Tweets, and Truth – Consistency is Optional
This point was recently made in a recent tweet by President Trump. He tweeted that he was the subject of a “Witch Hunt” headed up by the “man who told me to fire the FBI Director!” The man Mr. Trump references is Rod J. Rosenstein, the deputy attorney general, who authored a memorandum recommending the dismissal of Mr. Comey.
One problem with Mr. Trump’s tweet, however, is that it is inconsistent with what he said to NBC’s Lester Holt (the other problem is that Mr. Trump gratuitously confirms he is under investigation).
In that interview, Mr. Trump stated unequivocally that he alone had made the decision to fire Mr. Comey. He also confirmed that he reached his decision to fire Mr. Comey irrespective of any other recommendations, including that of the man leading the witch hunt.
Whether such inconsistencies prove to be detrimental in the political arena where “alternative facts” have taken hold as “acceptable” remains to be seen.
Social Media, Facts, and Litigation – Consistency Matters
However, outside of politics where facts do matter, inconsistencies between social media posts and trial evidence is detrimental. For example, we recently had a similar situation in a lawsuit involving the Michigan Whistleblower Protection Act. The manager (who was also the husband of the company’s owner) gave various reasons for why our client was fired. He eventually settled on the claim that our client lied to him about cleaning grease traps at the restaurant. The failure to clean these traps caused a dispersal of raw sewage to back up and contaminate areas of the restaurant, including the food pantry. Our client had called a Michigan Agency responsible for regulating restaurants out of concerns for how the clean-up was being handled.
The problem with the defendant’s claim was that the manager texted our client the reason he was fired was for his idea to contact the health department. And just to avoid any ambiguity, the manager announced, the “Health department should not have been called,” because “Shutting down is never an option!”
In a somewhat “Trumpian” move, the manager simply testified that the text message was fraudulent, which later changed to the manager’s belief it was fraudulent. Never mind the defendant previously authenticated the text message earlier in the litigation process and it was sent from the same number that the manager used to communicate with the employee (inconvenient facts).
The bottom line is, social media is increasingly a central issue when it comes to litigation. And unless you are the President, sometimes this will mean owning up to or having to explain an “inconvenient” or errant Facebook post, Tweet, text message, etc. But ignoring it or calling it “fake” or fraudulent without a factual basis is never going to work out well. Outside of politics, judges and jurors are simply too smart for such shenanigans to be fooled.
For more information about this article, contact attorney Jason Shinn. Since 2001, Mr. Shinn has addressed employment and complex litigation matters, including investigating and using social media and other digital evidence to represent his clients’ interests. Jason has also been a featured speaker on the topic of social media digital evidence and recently presented “How to Get Your Social Media, Email, and Text Evidence Admitted,” to an attorney conference.