By Brian Kabateck and Peter Klausner
For several years now, there has been an aggressive push for attorneys to capitalize on the many benefits of social media in order to better market themselves to a population that becomes more Internet friendly and dependent by the day.
This push should come as no surprise. A 2012 study by LexisNexis revealed that more than three quarters of Internet users who search for attorneys turn to online resources at some point in their search.
It’s not enough to simply exist online though. For attorneys to enjoy the full benefits of the digital age, they must become adept at maximizing the full potential of social media. According to Philip Livingston, former CEO of LexisNexis’ marketing and business solutions division, “[w]hen a potential client searches online to find a lawyer, the odds are pretty good that the attorney they end up choosing will be one who has optimized their online footprint in order to engage today’s web-savvy clients.”
But as lawyers use social media more and more to market themselves to potential business, they must be very careful about their own online footprints and conscious of how they will be perceived by juries. Tales of juror misconduct are as prevalent as ever and often times specifically involve the inappropriate use of social media. While jurors and prospective jurors alike are admonished not to conduct any independent research or inquiries, it’s a safe bet that a certain number of them will ignore this instruction and look up information about the trial lawyers litigating in front of them.
NOBODY LIKES A BRAGGART
For attorneys striving to promote their practices through the use of Twitter, Facebook and the like, they now have to balance that desire for publicity with delicate caution. Not only will jurors be able to view their professional boasts, but they’ll likely also have access to tweets, posts and Instagram photos that were intended for private consumption by friends and family. To put it more bluntly: you will be Googled, and anything that can be uncovered about you will be uncovered about you. This creates a whole host of pitfalls and dangers which attorneys would be wise to avoid.
So if you can’t hide your social media content, and you can’t simply ignore social media, then you need to ensure your social media presence augments your respectability, credibility and persuasiveness. While this seems simple on its face, there are a number of claims, boasts and comments attorneys might be accustomed to making which now must be muted. Some are more obvious than others.
For example, most attorneys likely have the sense not to brag about hoodwinking an individual or a jury, or post anything that demonstrates a hint of dishonesty. Juries are naturally skeptical about the integrity of attorneys. One need not confirm these inclinations in an online profile. Most attorneys likewise probably don’t need to be cautioned not to make disparaging remarks about jurors, their lack of intelligence or their inability to follow the facts of a particular case.
KEEP POLITICS AND WEALTH OUT OF THE PICTURE
But what about posts that express social, religious or political views? Facebook feeds are rife with cartoons, news articles and pleas for activism of one kind or another. Attorneys need to be mindful that not all of their jurors are going to be on the exact same page when it comes to social, political and religious affiliations. Any comments regarding current events or hot-button issues are likely to transgress the leanings of at least some of the panel. Plaintiff attorneys and defense attorneys tend to run on opposite sides of the political spectrum and they would be wise to conceal the depth of that division from third parties. This too should be common sense, but there are considerations that might not be so self-evident.
What about comments, facts or pictures that portray a lavish lifestyle or an abundance of riches? Some successful trial lawyers have been known to dress down for their court appearances in order to come across as the “little guy” fighting the big-moneyed foe. Some have even been known to drive to court in inexpensive or damaged cars to further the illusion. Attorneys would be wise to take this approach with their social media presence. Pictures of expensive vacations in exotic locales, luxury cars or other symbols of wealth could serve to confirm negative stereotypes in the eyes of some jurors.
Lawyers would also be wise not to make disparaging remarks about judges. Insulting the robe would likely make a person seem petty, and worse, like he or she doesn’t have control of the events in the courtroom. Both give juries a reason to doubt someone’s professionalism, and therefore a reason to doubt his or her side.
There are likely hundreds of other examples and considerations, some more obvious than others, but the overarching instruction is simple and clear: anything posted online might as well be posted in the deliberation room. Social media can be used to bolster your name recognition and reputation, but without careful consideration for how it will be perceived by jurors, it can cut against your ultimate aim.
Brian Kabateck is a consumer rights attorney and founder of Kabateck Brown Kellner LLP in Los Angeles. He is the immediate past president of the Consumer Attorneys of California. Peter Klausner is an attorney at Kabateck Brown Kellner LLP in Los Angeles.