When What Happens Online Ends Up in Court

by Robert Ambrogi
BullsEye: September 2009
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10 Cases Where Online Activity Came Back to Haunt

What happens in Vegas stays in Vegas. The same is not true of what happens online. With increasing regularity, litigants, lawyers, witnesses, jurors and even judges are seeing their online activities come back to haunt them in court.

This month, Bullseye brings you the best of the worst – 10 of the most outrageous examples of people caught in the courtroom by what they did on Facebook, Twitter or elsewhere online.

Next month, we will tell you how to participate in social media safely, so that your online activities don't get you in legal hot water.        

10. Counting keystrokes
Mary Mack, corporate technology counsel for the e-discovery company Fios Inc., once worked on a personal injury case in which the plaintiff claimed that his injuries left him unable to use his hands for anything but minimal activities. Searching the Web for information about the plaintiff, the defense team discovered that he was a blogger. Not only was he a blogger, but he was a prolific blogger.

Had the defense counsel simply confronted the plaintiff with his numerous blog posts, that probably would have been sufficient to discredit him. But the defense team went an extra step. It downloaded all his blog posts and calculated precisely how many keystrokes would have been required to write them all.

When the defense confronted the plaintiff with that number at trial, the plaintiff's facial expression no doubt said even more than his well-functioning fingers ever could.       

9. Texting is a no-no
During a video deposition, the deponent, an executive of the company being sued, was in California. Plaintiff and defense counsel were in New Jersey. The deponent's pro hac vice attorney was in Michigan. The video stream showed deponent and his PHV attorney from only the chest up.

Turned out, deponent and his counsel were busy below chest level, texting each other throughout the deposition. No one might ever have been the wiser, had PHV counsel not inadvertently addressed one of these text messages to plaintiff's counsel.

Needless to say, plaintiff's counsel went straight to court, demanding to see the text messages. The defense fought their release, arguing attorney-client privilege protected them. A federal court in New Jersey sided with the plaintiff and ordered the text messages handed over. Texting was no different than passing notes, it ruled, and violated the Federal Rules of Civil Procedure.   

8. Twittering from the bench
A magistrate in England found himself steeped in hot water after it was discovered that he was "tweeting" about his cases. It all came to a boil after another magistrate discovered the tweets and complained.

The tweets came after the magistrate was called in on a Saturday to hear bail applications for defendants arrested the night before. "Called into Court today to deal with those arrested last night and held in custody," he tweeted. "I guess they will be mostly drunks but you never know."

He continued to tweet as he heard the cases of three men accused of robbery. For example, one tweet said, "1st defendant. Conspiricy to rob TSB of £500,000. Good start - wrong previous convictions presented." He later concluded with this tweet: "Finished hearing bail. 3 refused for planning robbery of £480,000 from Tsb in Dawley, Telford."

When the magistrate learned that his tweets were to be investigated by a judicial advisory committee, he chose instead to resign from the bench. But even as he resigned, he maintained he did nothing wrong. Where better to defend himself but on Twitter, where he posted this explanation: "I didnt tweet whilst sitting in court but in the retiring room during the break and at the end of the hearing."

7. When jurors tweet
After jurors in an Arkansas case awarded a verdict of $12.6 million against a building materials company, one juror boasted on Twitter, "I just gave away TWELVE MILLION DOLLARS of somebody else's money." And that was only one of at least eight tweets he posted from his cell phone during the trial. Another said that the company would "probably cease to Exist, now that their wallet is 12m lighter."

Upon learning of the juror's tweets, the company promptly moved for a new trial. The defense lawyer contended that the juror's tweets showed he "was predisposed toward giving a verdict that would impress his audience."

Surprisingly, the trial judge denied the request for a new trial. The judge conceded that the juror's posts were in bad taste, but he ruled that they did not amount to improper conduct sufficient to warrant a new trial. Given that it is otherwise out $12 million, we have to assume the defendant will appeal the case and ask a higher court to weigh in on the twittering juror.

6. Two-faced on Facebook
You never know who may be watching you online. Remember that the next time you give a judge a made-up excuse for why you need a continuance.

A lawyer learned that lesson when she told Susan Criss, a trial judge in Galveston, Texas, that she needed a continuance because of a death in her family. Criss recounted what happened in a recent speech for the American Bar Association Judicial Division that was reported by the legal newspaper Texas Lawyer.

Having already given the lawyer a one-week continuance, Judge Criss was surprised when the lawyer's partner came into court and said that this time she would need a full month. But as a regular user of Facebook, Judge Criss had a surprise of her own up the sleeve of her judicial robe.

"I knew from her bragging on a Facebook account that she had been partying that same week," Criss said of the supposedly grieving lawyer. The judge told the surprised partner about what she had seen on Facebook. You can guess what she said about the continuance.

5. Careful who you 'friend'
While meeting in chambers with the judge during a North Carolina child-custody trial, the conversation turned briefly to Facebook. The wife's lawyer did not use it, but both the husband's lawyer and the judge did.

That evening, the judge logged on to Facebook and "friended" the husband's lawyer. As the trial proceeded, the judge and the lawyer commented about it to each other through their Facebook pages. At one point, the lawyer posted, "I have a wise Judge."

After the case ended, the wife's lawyer found out about the "friendship." She immediately moved for a new trial and for the judge's disqualification. The judge promptly removed himself from the case and the wife got a new trial.

The judge got something too – a lesson in judicial ethics in the form of a public reprimand from the state's Judicial Standards Commission. It seems his Facebook messages violated that irksome little prohibition against a judge engaging in ex parte communications.

4. Lawyer's blogging backfires
A California lawyer learned the hard way to watch what you say on your blog. His posts helped earn him a suspension from law practice. But the case has an unusual twist. The lawyer in the felony trial was there not as an advocate, but as a juror. Not only that, but he had not disclosed to anyone that he was a lawyer.

Even though the judge warned jurors not to discuss the case, the lawyer wrote about it on his blog. His posts identified the judge by name and described her as "a stern attentive woman with thin red hair and long, spidery fingers that as a grandkid you probably wouldn't want snapped at you." He gave the first name of the defendant and described his alleged crimes, referring to him as "a stout, unhappy man."

If the defendant was unhappy at trial, he later had reason to smile. When the lawyer's blogging came to light, the defendant's conviction was lifted and he was given a new trial. As for the blogging lawyer, he earned an 18-month suspension from the practice of law.

3. Blogging makes bad medicine
When a doctor decided to blog his own med-mal trial, it was a prescription for trouble. The doctor, known to his readers only as Flea, was already writing his blog when he was served with a lawsuit. As the case progressed, he periodically posted about it, describing his feelings when he was served with the complaint and reported on his own deposition.

When the trial finally got underway, he continued to blog, relaying his impressions of the plaintiffs' lawyer (whom he nicknamed "Carissa Lunt"), describing his "dress rehearsal," and accusing jurors of dozing off. While he may have thought his blogging had gone unnoticed by others in the courtroom, that was anything but the case.

During cross-examination of the physician, the plaintiff's attorney – the very one the doctor had described on his blog – surprised him with the question, "Are you Flea?" Yes, he sheepishly admitted. It was, according to one news account, a "Perry Mason moment."

The next morning, the parties entered into a confidential settlement reported to be "substantial." Ironically, jurors probably had no sense of the import of the question. But it was enough to signal that the plaintiffs' lawyer was prepared to delve into the blog in open court. Given some of what Flea had written there, settlement no doubt seemed the wiser course.

2. MySpace, my downfall
When an attractive New York model sued a high-profile billionaire claiming he had pressured her into sex when she was only 16, the tabloids were in a tizzy. Soon, the story was all over the gossip pages.

But it did not take long before reporters at one newspaper discovered the model's MySpace page. Based on what they found there, the newspaper reported that she was in fact a he. It also reported a graphic description taken from the MySpace page of the model's sexual fantasy involving multiple men and women. Further snooping revealed evidence that the model may have been much older than 16 at the time of the alleged affair.

After the MySpace page came to light, the model's lawsuit against the billionaire seems to have fizzled. But the model filed a second lawsuit, this time against the newspaper that discovered the page. She alleged that the newspaper's description of her fantasy defamed her by portraying her as a "promiscuous slut."

An appellate court disagreed. Because the newspaper reported only that the model had a fantasy – not that she actually engaged in the conduct – it did not defame her, the court reasoned. "The references to the Myspace pages merely served to highlight the ambiguity regarding the sexual identity of the person who sued the billionaire," the court said.

1. YouTube, Your Honor
Nothing, it seemed, could derail the nomination of Sonia Sotomayor to be the first Hispanic on the Supreme Court. Nothing, that is, but the resurrection online of her own long-forgotten words.

First it was that now-famous YouTube video. It showed a 2005 speech by Sotomayor to law students interested in becoming law clerks. The difference between serving in a trial court and in an appellate court, she told them, is that a "court of appeals is where policy is made." Conservatives jumped on the comment, saying it showed her to be a judicial activist.

As if that was not enough of a blow, next came the resurfacing of her 2001 speech, published by Berkeley's La Raza Law Journal, in which she said, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life."

Fortunately for now-Justice Sotomayor, neither her comment about judicial activism nor her "wise Latina" remark was enough to derail her track to the nation's highest court. But both serve as reminders that no matter what might be at stake, in the age of social media, the shadow of one's past is never far behind.

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