Clowns in Gowns

There is little about the practice of law that is laughable. Indeed, few things in our society are more important than the vigorous pursuit and realization of the ends of justice. Fate, fortune, freedom itself – these are the things that hang in the balance for many clients when they turn to an attorney for help. The law isn’t laughable … And no client wants their lawyer to be either.

On the opposite side of this coin, we would wager that there are very few lawyers who would enjoy being laughed at – very few who would want to be viewed as providing representation that is anything less than excellent. This is understandable. You’ve worked hard to get to where you are, and you want a reputation commensurate with your efforts. You tell your clients that you’re an effective, aggressive, knowledgeable, and experienced litigator – and you believe this is true.

If you want to protect the reputation you’ve worked hard to build though, it may be time to take a step back and reassess some of your practices. We understand that many attorneys may not want to hear this. You’ve practiced successfully for years, and you have a routine, with methods that you feel suit your needs. They’ve worked for you in the past, and you may feel reluctant to change them now. That would be a fair enough position, were it not for the fact that times are changing. And rapidly.

In the new digital age, methods that were once effective are now less so. Things that once seemed to be simple, safe, practices aren’t anymore. You can’t live in a new digital age while clinging to antiquated data collection practices – Not if you want to be the attorney that your clients truly need and deserve. Don’t be the laughable lawyer. Don’t be the one risking your client’s case – and your reputation – by failing to capture the evidence your clients need because you’re using methods that belong in the past. We’re here to help you move confidently into the digital future.

 

Digital Data

In our world today, social media is ubiquitous.  It’s everywhere, all at once, all the time. There are over 3 billion people currently using social media – That’s roughly 42% of the entire world population[1]. 11 new people join social media every second[2]. Every second! And those numbers will no doubt only continue to grow. According to the World Economic Forum, Facebook is the third most visited social website in the world, behind only Google and YouTube[3]. A full 74% of Facebook users visit the site at least once a day,[4] and 1.3 million pieces of content are shared on Facebook every minute of every day[5]. That’s right – 1.3 million pieces of content – every single minute - of every single day. That’s a mind-boggling amount of content.

As a lawyer, you’re most likely skilled at making logical leaps, and in this case, the leap isn’t a big one – if so much content exists on social media, then, without question, it’s making its way into the courtroom with ever-increasing frequency as well. Regardless of your area of focus, the capture of online content for use as evidence is becoming increasingly prevalent in the courtroom. Indeed, eDiscovery is a billion dollar industry that is only expected to continue to grow exponentially. The question to ask yourself is – how are you going to capture that evidence? The answer can make all the difference in whether you are a laudable lawyer, or a laughable one.

 

Screenshots, Sanctions, Duty, and Delay

So, there you are. You’re representing a client and you know that social media accounts exist which may contain evidence you need for your case. You’re browsing through those pages, and suddenly you come across evidence that you believe may be valuable to your position. The question is, what to do next? If your response would be, “Take a Screenshot!” – You would not be alone. You would also be making a very unwise and inefficient decision.

We hear it often. “Screenshots are quick and easy.” “I can take a screenshot whenever I want, and just print it out. That’s a fine, effective way to capture this evidence.” “Why would I pay for a capture service when I can just print the screen for free?” These are common assumptions and misconceptions. Sometimes, we hear, “For just a small amount of evidence, I’ll use a screenshot. For a larger amount of collection, maybe I’ll outsource.” Or, unbelievably, on occasion, we’re even told, “This evidence isn’t as important, so a screenshot will be fine.” All of these are common misconceptions – and they’re all wrong. Screenshots are, quite simply, insufficient, ineffective, and risky. Why take that chance on your client’s case, and on your reputation?

It goes without saying that to a client, all evidence that could help your client’s case is important. It also goes without saying that as an attorney, you want to be able to reassure your clients that you are collecting that evidence in the most effective and efficient manner possible, and screenshots are not the way to do it. Why not? The answers are actually surprisingly simple. Screenshots lack authenticity and authority. It’s hard to prove when you took them, or to disprove an assertion that you altered them. It’s hard to prove that they are what you claim them to be. They’re often incomplete. They’re difficult to organize. They often fail to prove the point. Sometimes, they’re even grounds for sanctions. Is all of that worth the risk? We would say that it isn’t.

 

Authentication

As anyone familiar with social media knows, and in the civilized world today that’s almost everyone - it’s constantly evolving. Platforms change often. Posts are made, edited, and in some cases, deleted in short order. Sometimes, those incriminating posts are unfortunately even altered or deleted at the direction of opposing counsel.

That was exactly the case in Allied Concrete v. Lester, 736 S.E.2d 699 (2013), a case in which some of the information on Lester’s Facebook page was harmful to his character. Fearing it could be used to discredit his client, his attorney told him to “clean up” his Facebook and MySpace accounts by deleting insensitive photos in an effort to avoid those photos being used at trial. Lester deleted the accounts, and his attorney signed Discovery responses denying the existence of the accounts. His attorney was sanctioned, but by then, the valuable evidence was gone.

While you may not be that type of attorney, the fact is, that many are. And here’s something else you may not have considered - Those same attorneys who are willing to advise their clients to delete or alter their social media evidence? Those same attorneys are also likely aware that many attorneys on the other side are attempting to capture evidence by use of a mere screenshot.  In fact, they’re banking on you taking exactly that risk.

You see, those attorneys – and their clients – those who would alter, edit, photoshop, or erase evidence entirely – they understand, perhaps better than you do, the advantage that it gives them. They know that they can walk into the courtroom and argue that your screenshot is exactly what it is – a mere printout of what you claim that you saw on the screen at the time. When they argue that your screenshot is not what you claim it to be – that you photoshopped it, or that it was somehow altered, how will you be prepared to respond? You may put forth an affidavit – and sometimes that may hold up. Plenty of times though, it won’t, as this fairly extensive list of recent case law makes clear.

As social media continues to be used as a primary source of evidence in today’s courtrooms, screenshot scrutiny is only expected to increase.  Courts want evidence that is easily and readily authenticated. With a Plug-in that you can install and use almost effortlessly, Webpreserver collects Metadata and HTML source code, and places a Digital signature and timestamp on all preservations.  Our captures produce sound, reliable evidence that complies with the E-Sign Act, Federal Rules of Evidence, and other regulations.

So why stake your verdict on a screenshot? Wouldn’t it be better to walk confidently into the courtroom with evidence you could rely on?  It’s the right choice for your client, and it’s the right choice for your reputation.

 

Sanctions

As a busy attorney trying to do the best for your clients, the last thing you want to worry about is being sanctioned. But, sanctions are a very real possibility for attorneys who “lose” or fail to effectively collect evidence that would be valuable to their clients.  Regardless of your jurisdiction, the law is clear that an attorney who cares about providing the best possible service to your clients, you have a duty to preserve evidence from the moment that you anticipate a lawsuit. See Victor Stanley, Inc. v. Creative Pipe, Inc.

There is always a risk of valuable evidence “disappearing,” but due to the nature of online evidence, the risk is even higher, as the Lester case and others like it make clear. Is a screenshot worth being sanctioned?  Is the time and tediousness associated with printing screen after screen of scrolling content, trying to organize that content, and then trying to obtain an affidavit sufficient enough to hopefully provide authentication for that content really worth it?  Is it worth it, particularly, when there could be a more affordable, more effective solution at your fingertips?

 

Technological Competence

In addition to all of the authenticity concerns surrounding screenshots, it’s also important to remember that a total of 36 states have now adopted a duty of technological competence[6]. This means that regardless of whether or not you love technology, you are expected to understand it. Regardless of whether you use social media yourself, you need to be savvy.  That can be daunting, and we understand that. Why spend your time worrying about whether you’ve met these standards? Why pin your client’s hopes to screenshots that may fall short?

Utilizing Webpreserver allows firms to not only gather evidence in the most effective and efficient manner possible, but to meet the increasingly stringent competency standards set by the state courts. Doing so is the smart, savvy move, and a variety of services are offered to make that choice seamless and cost-efficient.

At WebPreserver, we understand that technology can be daunting, particularly as it seems to be ever-evolving. But don’t make the choice that many attorneys in your shoes do – to stay stuck in the past, taking screenshot after screenshot. As an attorney with a duty to preserve and collect the evidence you need to seek justice for your client, you need to be able to collect that evidence quickly and effectively - before it is deleted or hidden by the opposing side.

 

Call Us Today

As an attorney, it’s your job to capture the evidence you need, when you find it, and in the most effective format for your case. WebPreserver is the solution to make this possible. Browse. Click. Evidence. Simple, efficient, effective. Don’t delay. Don’t outsource to a third party and risk losing the evidence that could make or break your client’s case. Don’t be the laughable lawyer, who loses a case that could likely have been won, because you pinned your client’s case to a screenshot. Make the better choice. The savvy choice. The smarter choice. That choice is WebPreserver. Call us today.


[1] https://www.skyword.com/contentstandard/marketing/10-social-media-usage-statistics-you-should-know-and-what-they-mean-for-your-marketing-strategy/

[2] https://learn.g2crowd.com/social-media-statistics#social-media-statistics

[3] https://www.weforum.org/agenda/2017/04/most-popular-websites-google-youtube-baidu/

[4] http://www.pewresearch.org/fact-tank/2019/02/01/facts-about-americans-and-facebook/

[5] https://www.jeffbullas.com/21-awesome-facebook-facts-and-statistics-you-need-to-check-out/

[6] https://www.lawsitesblog.com/tech-competence

 

Exciting news from the WebPreserver Team The Happy Paralegal

Serving a global client base of Law Firms, Investigators, eDiscovery Firms, Law Enforcement Agencies, Insurance Providers, and the legal counsel of corporations, WebPreserver Software Inc. is a privately-held firm that is owned and managed by a successful team of software veterans. Our aim is to make eDiscovery easy and efficient by providing the highest standards of admissible legal evidence, technology and customer satisfaction.

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