Last night I read an interesting blog written by Alyssa Engleberg and Michelle A Levin for Law.Com about how the internet has affected the procedural practice of family law. It really delved into how the practice of law is constantly evolving to keep up with the constant changes in technology. It detailed how just in the past decade E-Filing has become the norm, email and text messages have become primary modes of communication and how much social media influences cases. It is our responsibility as family law practitioners to be mindful of the benefits of all these new conveniences, yet exercise caution and recognize the limitations associated with these platforms.
I want to expand on two topics that come up in nearly every divorce or child custody case—social media and text messages. When I look at how much is in writing these days and how it seems that most do not have a filter, I can’t help but think about an old high school science teacher who at the time we all thought he was a little bit out there with his unsolicited life advice, but the older I’ve gotten I realize how right he was. He used to say, “Never write anything down that you don’t want other people to know.” Wow, if he were still alive today to see that practically everything is in writing for all to see forever, he would not be happy and advising us all against it. He wouldn’t be wrong either, particularly if you are going through a divorce of child custody case.
The legal profession uses social media to gather information about clients, opposing parties, witnesses, and etcetera. Social media has become a valuable tool in family law cases. It can be used for a number of reasons like a basis to assert claims of cohabitation, challenge custody, alimony, lifestyle choices and the list goes on. Attorneys use social media evidence daily to further back up their cases.
In addition to posts being used against you in a court of law, social media posts can lead to locational disclosure, investigation without a warrant, social profiling, cyberstalking and cyberbullying. In fact, for some cases, we recommend that clients completely disengage from social media posts to avoid any issues during the proceedings. Even if you restrict posts to only being visible to “friends”, you are still at risk, because it is as simple as a screenshot and then it is out there for all to see.
When you are upset with your soon to be ex-spouse or he or she is already your ex, it is so easy to type an angry text message to him or her and although you may be rightfully angry, it is always a good idea to refrain from typing and sending that text. Text messages are notoriously taken out of context and used against defendants and plaintiffs in a court of law. I have lost count of how many times a past text message has come back to haunt a client. When in doubt about sending a text message, keep this in mind, if you are unsure or doubtful, and then just don’t send it.
Of course, admissibility issues can arise due to authentication and relevance for both modes. Authentication is proving that the item is in fact authentic, i.e. did the account owner actually do the posting or tweeting or did someone else write on the owner’s wall? There have been cases that the opposing party has gone to the trouble of making a fake social media account pretending to be the other person making posts to make them look bad. The courts will look for evidence linking the post, message, and photo to the author by looking at names on accounts, IP address, unique internal characteristic, timing and verification by third party.
When you hire Kevin Hickey Law Partners you not only get attorneys that know the law and how to handle each unique case, but you also get attorneys that know how to utilize the newest technology and how it can benefit you. You will also get advice on how to handle yourself online when in a court case. Call Kevin Hickey Law Partners today to get an attorney that can assist you in all facets of the case.
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