Living your life online? Those posts could come back to haunt you

You don't have to look very far today to see the impact of social media and the Internet in our everyday lives. So it should come as no surprise that all this technology is having a profound impact on the law.

It has affected everything from how attorneys research, prepare and file your case to the evidence presented and even to the all-important outcome of who wins and who loses.

Attorney Keith E. Kendall, who focuses his practice at Scaringi Law on civil litigation and unemployment compensation, offers some important pointers on how to use all this technology in a way that won't cause regrets down the road.

The information we post can and will be used against us

There is no Miranda warning when we use Facebook. But maybe there should be.

Why? Because information is power. And when it comes to a legal case, the more attorneys know, the better they can prove their case and undercut an opponent's argument.

The reams of personal information people readily divulge online have proven to be a gold mine of potentially case-changing information.

"Information technology and social media in court impacts our clients' cases more directly in the form of evidence used to prove your case or disprove the other side's case," Kendall says.

Emails can be a potential legal minefield.

"We use email so often, and so informally today, that most people are less guarded or even completely unguarded about the content of their messages," Kendall warns. "I can't count the number of times that I've obtained email messages during discovery that turned into very damaging evidence in court. The moral of the story - and a constant reminder to my clients - is that you should not put anything into an email message that you do not want the entire world to read."

Think of email as a written record that lasts forever - and it isn't nearly as private as you might believe. Especially messages sent at work.

"Much of my practice involves employment law," Kendall says. "Though virtually everyone uses their work email to convey and receive personal communications, employees need to be aware that their employer owns their email."

That means emailing your best friend to complain about your boss isn't a very good idea.

Early on, judges struggled to fashion rules for the use of electronic information as evidence. Ultimately, the courts have ruled that an email message or a cellphone text message can be used in the same way as any form of documentary evidence.

That means if the electronic record is deemed authentic and relevant, it's probably admissible as evidence. Not only admissible, but potentially case-changing.

"That is why I've often directed my clients to bring their cellphone to court, in order to show a damaging text message sent to my client," Kendall says. "On more than one occasion, that text message shown to the judge has won the case for my client. Unlike bulky documentary evidence, digital evidence is so much more accessible, reusable and easier to use in court."

Kendall has used such texts to prevail in protection-from-abuse, child custody, workers' comp and divorce cases.

Facebook is an open book. Twitter is a shout-out to the world. And a picture can sink a case.

Facebook and other forms of social media can be a double-edged sword.

On one hand, Facebook is an empowering and impressive communication tool to connect with friends and tell the story of our lives, right down to its smallest detail and complete with pictures. So many pictures!

On the other hand, that information can come back to haunt, such as a photo of you playing volleyball after filing a workers' comp claim. Or maybe something derogatory you wrote about a neighbor, a business or a past employer. All of it represents a legal minefield that can blow up in one's face.

"I had a [protection-from-abuse] petition filed against a client dismissed when the alleged victim became aware that I would show the judge a Facebook picture she posted showing her partying in State College with friends at the time of the alleged abuse,'' Kendall says.

Angry posts tearing at someone's character or sharply criticizing a business or service also can come back to bite. Cyber-related accusations of defamation of character, bullying and business interference are increasingly the subject of lawsuits.

"Do not ever post, text or email anything that you would be embarrassed to have your mother read," Kendall warns. "If you do and if you are hauled into court to defend yourself for slandering my client on Facebook, chances are you'll see me beaming your message via digital projector onto the biggest smart screen I can find for the whole world to see."

Indeed, the Internet's Wild West days are coming to a close.

"Though often slow to change with the times, the legal system has now caught up and is much smarter than you might think," Kendall says. "Attorneys and courts have had to keep pace with these powerful new tools, and have, in my view, done so admirably.

"Your conduct should be guided accordingly,'' Kendall says. "A pause for reflection would be wise before hitting 'send' or clicking on 'post.' Because once sent, that ill-advised email, text or post can never be recovered and could become very useful in making a case against you."


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