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.