Lawyers and Clients and Social Media

By htsyl, 10 July, 2010, No Comment

I would actually like for my lawyer to have a general awareness and understanding of social media (e.g., Facebook, Twitter, LinkedIn, to name a few). This would mean, hopefully, that they were not a total stick-in-the-mud and had some awareness of current events and technology.

That having been said, lawyers need to be very careful about using social media – and you could be the victim of their ethical breaches on the web. If a lawyer or law firm is using social media simply to promote their services in a general way, i.e., basically pointing the consumer to their website for more information, or providing links to articles that educate, that is okay. On the other hand, an individual attorney could certainly end up in social media quicksand by posting confidential information on what they think is a “personal” facebook or other social media account.

If you, the consumer, haven’t already figured out that the Internet in general, and social media sites in particular, are not confidential, you have some catching up to do. But, if your lawyer (in a professional or personal capacity) hasn’t figured that out… A lawyer’s activity on the Internet is governed by the Rules of Professional Conduct…they should not be making promises or guarantees, they should not be bragging about “wins” or griping about clients in any way that could breach confidentiality or other rules. Attorneys are also responsible for the content posted on law firm sites or social media pages by non-attorney staff in their offices.

And another very important point, and this is about YOU! Lawsuits and other legal matters are being won and lost with information about plaintiffs and defendants found on social media sites. THINK before you POST! Your social media life is an open book, and if you are ever involved in litigation, that book will be read. The printed word will draw a picture of you in a court of law that words cannot erase. If you are having any trouble imagining what this could mean, here’s an example. You are separated from your spouse and involved in a divorce, including a fight about the custody of your children. It’s a stressful time in your life, you go out with friends, you party, you drink, you drive, you report your whereabouts and activities to your “friends” on Facebook or Twitter. You claim the life of a monk in court and next thing you know, your social media posts are blown up on a poster at a court hearing! It’s not just between friends, it’s EVIDENCE. Ditto for a worker’s compensation claim, personal injury suit, etc.

If you wouldn’t want to see it on a poster in a courtroom, don’t post it! Simple. Period.

It works both ways — if you have doubts about your lawyer, or you are looking for a new lawyer — check them out on social media.

That’s it for now – don’t forget to follow us on Twitter @htsyl.

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Representing Yourself – Flash of Genius or Shower of Stupidity?

By htsyl, 13 June, 2010, 6 Comments

I was watching the movie Flash of Genius the other day – Greg Kinnear plays college professor and part-time inventor, Robert Kearns, who invents the intermittent windshield wiper for cars. Long story short, Ford steals his invention, he sues but his lawyers quit because he won’t accept a settlement offer, and he decides to go ahead and represent himself against Ford Motor Company. I am not sure exactly how he gets it accomplished, and he ends up losing his sanity, then his wife and family, and ends up with a garage full of paperwork. But, in the end, he WINS! The jury finds against Ford Motor Company and awards him more than $10 million. And after that, Chrysler settles with him for more than $18 million. True story. Greg Kinnear talks about Flash of Genius

This was a remarkable outcome. The reason that he continued to pursue this complex patent case on his own was because of the principle. For him, it was not about the money. The reason he did not accept fairly large settlement offers was because they did not come with an admission of “guilt” or “responsibility” from Ford (one of the biggest reasons for settlement offers is the confidentiality and no admission of guilt).

Representing yourself in court is not a wise course of action. The system is simply not designed for the non-lawyer. You have every right to do it, even in criminal court, but it’s never pretty. We have all seen video of criminals acting as their own lawyer (remember the Long Island train shooter, Colin Ferguson?). Judges don’t like it, the lawyers on the other side will try every nasty trick in the book to trip you up, and in front of a jury it can get pretty dicy when you have to put yourself up on the stand and question yourself, and register objections against the other side while they are questioning you.

In a serious criminal case, if you are given permission to be your own attorney, you are usually appointed “stand-by counsel.” This is a lawyer that is prepared to step in and take over if you are really in a jam, but they are usually not that happy about the job they have been given…they most certainly spend a lot of time sitting on their hands so they don’t jump up in court while the self-represented bumbles along.

If you represent yourself in a civil case, as did Robert Kearns against Ford, it will cost you a fortune and it could be next to impossible to keep up with the avalanche of paper that the other side is going to send your way. It turns out that lawyers are a necessary evil when there is a disagreement that can only be resolved in a courtroom. They know the secret handshake and they are not sharing.

As always, I urge you to be an active participant in your litigation. Don’t be a passive bystander. It is nice to hand over some of the stress of litigation to an attorney, but keep your eye on what is going on. Stay informed. Don’t let the fees get out of hand. Insist on status reports and monthly billing statements. Set limits on expenses and require pre-approval on large amounts.

Don’t drown in a shower of stupidity – show your flash of genius – you can’t sue yourself for malpractice!

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What Happened With Miranda?

By htsyl, 3 June, 2010, No Comment

You might have missed it this week, what with the official start of summer and the oil gusher in the Gulf, but the US Supreme Court handed down a big decision affecting your Miranda rights on June 1st. In a case called Berghuis v. Thompkins, the Court decided that you must expressly invoke your Miranda rights, and if you don’t, you have waived them. In other words, when the cops say “you have the right to remain silent and the right to an attorney even if you can’t afford one…” you have to SAY “I don’t want to talk” or “I want to remain silent” or “I want a lawyer” in order to take advantage of your Miranda rights. After this, the police must stop questioning you (or palling around with you or using whatever technique they have been using to get you to talk up to that point).

This case was decided with a 5-4 vote, with Justice Kennedy writing the opinion and Justice Sotomayor writing the dissent (joined by Justices Stevens, Ginsburg and Breyer). One of the reasons that Justice Sotomayor disagreed is that she thought it was counterintuitive to say that someone is “required to speak” in order to “remain silent.” It is a contradiction, but let’s take a lesson from the decision and the contradiction.

Obviously, it is important that you know your rights. And it is also easy to assume that Miranda rights don’t apply to you and never will. That’s just not true…it might not be you, but it might be someone in your family or a friend. So, LISTEN UP – here is the lesson. SPEAK UP AND INVOKE YOUR RIGHT TO REMAIN SILENT, SAY YOU DON’T WANT TO TALK, SAY YOU WANT A LAWYER!

Why? You are innocent – why not talk, help them out? What you probably don’t know is that the police are allowed to use all kinds of techniques to get you to talk, they can wear you down by going on for hours, they can promise you things if you just “confess a little,” they can lie to you (yes, it’s in the manual).  At some point, you may even believe you did do something wrong, and there you go sliding down that slippery slope, when all you had to do to avoid it was to not talk. It may get you locked up for a while but it will be worth the wait. The convicted murderer at the center of the case at hand was being “mostly silent” during his interrogation and then the police asked him if he “wanted to pray for that boy he shot down” and he said “yes.” Bingo – confession!

Remember, this is not a discussion about whether this guy is guilty of murder – this is a question of what his rights were – what your rights are. Don’t forget this — You have the right to remain silent – BE SILENT…You have the right to an attorney even if you can’t afford one – ASK FOR AN ATTORNEY. One more reminder – if you forget this advice and start talking and then you change your mind – speak up at any time and invoke your rights – you can get them back and they have to stop questioning you.

It’s simple – you can deal with whether you have a good attorney later.

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