by Robert Ambrogi BullsEye: October 2009 IMS ExpertServices™ is the legal industry's premier full-service
expert witness provider.
LinkedIn. Facebook. Twitter. Blogs. Some say these social media sites offer
brave new worlds of opportunity, marketing and collaboration. Others assert they
are minefields full of danger for the unwary or unwitting.
For expert
witnesses, which is correct? Both, of course. Yes, these various forms of social
media present powerful opportunities to promote yourself and your expertise.
Yes, they also pose significant dangers.
Bullseye reported last
month on how litigants,
lawyers, witnesses, jurors and even judges are seeing their online activities
come back to haunt them in court and elsewhere. We promised to return this month
with advice on how to avoid trouble online.
So how can expert witnesses practice "safe social networking?" In
the spirit of the topic, we turned to social networking sites such as LinkedIn
and Facebook to put that question to a variety of experts, lawyers and consultants.
From
the feedback we received, we distilled their advice down to these top 10 tips.
10. Be professional – always Remember that you are a professional 24/7. Behave like one and always
be professional in whatever you do online.
That means, above all, be truthful
in what you say about yourself, your abilities and your areas of expertise.
Be particularly careful in the bio you post on your website or blog and
in the profiles you create for Facebook, LinkedIn and other sites. Do
not portray yourself to be something you're not.
Being professional also
means exercising care in what you say about others online. Comments you
make about a judge, a lawyer or another expert could later be used against
you in court to show bias.
In whatever you post online, pay attention
to protecting your own "brand" and
your professional reputation. "Participate – be part of the conversation," advises
Mark Beese, president of the consulting firm Leadership for Lawyers
in Denver. "But
don't do anything that might diminish your reputation. Think."
9. Be thoughtful about who you connect
with
One simple way to protect yourself in social networks is to be careful
who you connect with. Our story last month gave an obvious example
of this in the tale of the judge who "friended" a lawyer on
Facebook when that lawyer was representing a party in a trial before
the judge. Not surprisingly, the judge was reprimanded and the
losing party got a new trial.
One can easily
imagine scenarios in which an expert witness might later regret connections made
on a social network. A connection might be used in court to indicate one expert's
endorsement of another's work, even if that was not intended. Or it could be
used simply to show a bias for or against someone or to suggest a conflict of
interest.
Also
be careful to avoid connecting with others who may have their own ulterior motives
in connecting with you. For example, a lawyer might seek to connect with you
on Facebook in order to investigate you and your network of connections.
Some
legal professionals recommend that you segregate professional and personal contacts
in different networks. "I still treat Facebook and LinkedIn separately," says
Reid Trautz, director of the Practice and Professionalism Center at the American
Immigration Lawyers Association in Washington, D.C. "Facebook is for personal
use including family, friends, and professional friends; LinkedIn is strictly
for professional connections and professional friends."
Joshua
Masur, a partner with the law firm Turner Boyd in San Francisco, does
the same, using LinkedIn professionally but restricting his Facebook connections
to friends and close colleagues. "Of course, this means that you have
to be willing to draw lines," he says, "which means being willing
to say no when people ask to connect in a network that you've restricted."
8. Don't fall victim
to the myth of anonymity "I would never delude myself that socializing 'anonymously'
on any of these platforms is truly anonymous, including commenting
on blogs," cautions
Susan Cartier Liebel, the Connecticut-based founder of Solo Practice
University.
The
recent history of the Web is replete with stories of the unmasking
of legal professionals, witnesses and jurors who thought they were
posting anonymously. There was the assistant U.S. attorney who was
exposed by a major magazine as author of an anonymous blog about
judges. There was the in-house lawyer at Cisco whose identity was
revealed after a lawyer he wrote about as a patent troll offered
a reward for his unmasking.
These
examples show that an expert witness should not feel safe to say
anonymously what the expert would not feel free to say with attribution.
This is true of blogs authored anonymously and of comments posted
anonymously to others' blogs.
Some feel
a false sense of security about speaking more freely on Facebook, where users
can create restricted groups. If you are considering this option, make sure you
educate yourself thoroughly on how to do it properly, advises Courtney Kennaday,
practice management advisor for the South Carolina Bar.
Even then, she adds, "There's
a strong caveat: don't count on Facebook's restricted groups to restrict everything.
It is very difficult to know what types of items will slip through and be viewed
by everyone."
7. Be consistent in what you say online
The bane of the expert witness is the prior inconsistent statement. When
opposing counsel can show that what an expert is saying now contradicts
something the expert said previously, the expert's credibility and
reliability are called into question.
This can pose a particular danger
for the expert who maintains multiple profiles on multiple sites.
If you have profiles on multiple social-networking and other websites,
make sure they align with each other.
For example, be sure you list the
same degrees, educational institutions and publications. Inconsistencies
in your online profiles will only provide fodder for counsel to raise questions
on cross-examination.
6. Exercise editorial discretion – over
yourself and others
Say nothing online that you would not want attributed to yourself on the
front page of the New York Times. Do not assume that no one will
read your blog or see your tweet. Once it is online, it is online
forever and it can and will be found.
That
does not mean that you cannot show personality or creativity, says
Matthias Jung, director of Legal One Marketing in Houston. "It is
good to let your personality shine through to your audience, but
it is important to do so as if your mother or daughter were sitting
there beside you."
Remember
that colleagues, potential employers and potential adversaries will
read what you say. Your online comments could help determine whether
you get hired. If you would not say it to someone's face, do not
say it online.
If it is
important to censor yourself, it is also important to censor others. "If
you have a blog, make sure you approve all comments before they are posted," advises
Lorraine Fleck, a trademark attorney and blogger in Toronto. "That was
a great tip I got from a veteran legal blogger, which has prevented my
blog from becoming a haven for those advertising fake Viagra."
5. Know your profession's ethical guidelines Many expert witnesses are in professions that have developed guidelines
and standards for professional conduct. Be sure that you familiarize
yourself with any such standards pertaining to your profession.
Some professional
societies are adapting their guidelines to address issues raised within
the context of social media and online networking. But even without adaptation,
many of these guidelines have provisions that apply as equally to activities
online as offline.
Consider whether and how these guidelines relate to your online activities
and be sure your own activities conform to them.
4. Police your online reputation No matter how careful you are in what you say and what you do online,
someone else can come along and damage your good name. It is not enough to
watch what you say about yourself, you also need to watch what others are saying
about you.
It is a good idea to set up a Google alert of
your own name. Watch for what others are saying about you on blogs, in comments
on blogs, in news stories and elsewhere. If you see something that it inaccurate,
correct it, either by having the author make a correction or by adding your own
comment presenting your side of the story.
Also police the use of your name in
other contexts. Someone could have a Twitter account in your name and be posting
tweets that could be ascribed to you. Someone could even have a website that
purports to involve you or be endorsed by you. It is important to be diligent
about protecting yourself and it is fairly easy to do.
3. Don't give specific opinions
Blogging is an effective way to demonstrate your command of your area of
expertise. But keep your comments and opinions as generic as possible.
Do not give an opinion on a specific set of circumstances unless you
are prepared to defend that opinion further down the road.
One place where
experts could run into trouble is on sites such as LinkedIn that allow
users to post questions and others to post answers. Simply by answering
a question, an expert may end up expressing an opinion that could later
be used against the expert in court.
This could happen even through a simple
exchange of e-mails. If you receive an unsolicited query asking for
your expert opinion, think carefully about the potential implications before
offering an answer.
Experts should even think twice about giving opinions
on controversial topics outside their areas of expertise. Lawyers may be
reluctant to retain experts whose opinions on any topic might be viewed as
inflammatory.
2. Don't talk about your cases
Consider the example of Kristine Ann Peshek. On her blog chronicling her
work as a public defender in Illinois, she sometimes wrote about
clients and cases. Although she never used a client's last name,
she now faces disciplinary charges because authorities say her posts
revealed enough information about her clients that others could identify
them.
Unlike a lawyer, an expert witness may not face disciplinary
charges for blogging about cases. But an expert can get into all
sorts of other trouble, from saying something online that could damage
a case to saying something that could weaken the expert's own credibility.
Aside from the damage to the case is the damage to the expert's
career. An expert who regularly blogs about actual cases
is likely to raise red flags among lawyers who otherwise
might hire the expert. If you blog, keep your posts generic.
1. Use common sense It sometimes seems to be in short supply these days, but common sense
is the best way to stay out of trouble. Apply it to everything you do
online and you probably can forget all the other rules.
"While I'm a fan
of policies," says consultant Mark Beese, "I
tend to stick to a single maxim: Don't do anything stupid."
Common sense
pretty much covers all the bases. It keeps you from saying something
you'll later regret. It keeps you from crossing a line you shouldn't.
It keeps you from getting into trouble in court, with a client or with
a colleague.
As
Ron Friedmann, a lawyer, blogger and frequent speaker on issues pertaining
to law practice management and technology, summed it up: Think before
you hit enter.
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