Before the age of smart phones, text messaging, social networking, Twitter, blogging and Facebook, to name only a few, lawyers sought during a law suit to “discover” mostly paper documents.
Today the list of requested data about you and those you communicate with is staggering. It’s also quite a revealing exercise to think about all of the unwise, profane, irreverent and frankly “stupid” things that are captured by our personal devices. It is well to bear in mind that these “private” utterances might some day be publicly displayed to our serious disadvantage. It gives meaning to the young rabbit Thumper’s mother’s advice as reported to Bambi: “if you can’t say anything nice don’t say anything at all.” In today’s environment the advice is shorter: “don’t say anything at all.”
Recently a request for production of documents in an injury case asked for any photos of that person after the injury including family vacations telephone cameras etc. Imagine his surprise should he have any really embarrassing images of himself.
Another client was compromised in his criminal case because he described his behavior to his social media admirers. Apparently he did not anticipate the police officer looking him up.
And so it goes. When speaking to high school classes, I regularly tell students that they should say nothing their mothers would disapprove of and for sure don’t put in writing or “post” online anything of a similar character. Regrettably our narcissistic society no longer seems to teach the prudence of weighing our thoughts first. We have encouraged to “just say it” as if indiscretion was a virtue.
Today a litigant must expect to have his or her sincerity, credibility, accuracy and good faith judged by what he or she tells friends and family. We used to caution our injury clients against casually saying “I’m fine” when they were still taking pain medication. Today we advise them not to discuss their situation and certainly do not post progress reports and chat on line about their feelings, good or bad.
In real life our conversation and utterances defines us. We show ourselves plainly when we exercise our right to speak. Our morality, behavior and intellectual processes are displayed as we text, twitter and display ourselves in social media. We should not be surprised that those who oppose us or our objectivity should use our own words against us.
In a nutshell, if a client needs to communicate about the case, it should be covered by the attorney-client privilege by it being directed to the attorney not the Cyber world.