Social media provide possible sources for lawyers of the public or semi-private thoughts of clients, opponents, witnesses, and even jurors. This can be a goldmine for witness impeachment or an opponent’s admissions, but it can also be an ethical trap for the lawyer who is too aggressive. And lawyers need to be especially careful before advising clients to clean up their online act to avoid spoliation of evidence.
Long before Google, there was Paul Drake, Perry Mason’s private detective extraordinaire, who could find out anything about anyone, in an instant, then deliver it to court at precisely the right moment. In real life, Paul wouldn’t have been able to find nearly so much, or so fast, and he would have spent most of his time in jail because you can’t cut that many legal corners, even if you work for a lawyer.
Lawyers need (or want) lots of information about people for all sorts of reasons, including background on opponents and witnesses, who are generally considered to be fair game, within broad legal boundaries. [This isn't true just for lawyers -- any business or nosy neighbor might want lots of data, too.] You can, for example, use some types of criminal convictions to imply a witness or opponent is untrustworthy. And you can also use relevant prior statements to discredit inconsistent statements now.
How the lawyer obtains that information often raises legal and ethical issues, however. Opponents in litigation are subject to all sorts of discovery, from themselves, their company or employer, and beyond — but there are limits because discovery is so often abused. Non-party witnesses get more protection, but are still subject to investigation. Continue reading