“I can usually turn a case around by getting into the social media of the other side,” muses Michelle Sherman, NITA trainer, author, and webcaster. “Turn a case around”—now there’s a phrase that should make every trial lawyers’ ears prick up. It’s exactly what Michelle details in her new book, “Winning with Social Media: A Desktop Guide for Lawyers Using Social Media in Litigation and Trial” (print, epub for iOS, mobi for Kindle/Android), published by NITA in 2016, and spoke about in our recent webcast, “Winning with Social Media: A to Z.” Today, she chats with The Legal Advocate about what’s the next big thing in social media that you should be paying attention to, how she spends her time away from desk and screen, and, most importantly, how you can use social media to turn your own cases around.
How did you become interested in using social media as evidence?
Litigation is all about winning or getting a favorable settlement for my client. It is as simple as that. I have found that I can usually turn a case around by getting into the social media of the other side. Social media activity cuts against most of what people say in their complaint and pleadings. Social media activity helps me show the jurors that there is more going on here than meets the eye, and then offer them an alternative way of looking at the case and the other side. Because of NITA, I think outside of the box and use all of the tools available to me when trying a case. Social media is just one of these tools.
What are some examples of the most egregious or “why didn’t they know better?” flubs on social media you’ve heard of that had unintended legal consequences?
Several come to mind, starting with a widower plaintiff who was suing for the wrongful death of his wife. After her death, it is reported that he was shown on his Facebook page in an “I ♥ hot moms” t-shirt, while holding a beer can. In another case, a burglar stopped to post a picture of himself on Facebook wearing a coat he had just stolen and holding cash he had just taken. The only problem (besides the robbery) is that he stupidly used the laptop of the teenager living in the house, and posted a smug picture of himself on the teenager’s Facebook page for all of his friends (and, later law enforcement) to see. And, finally, there was the case of the twenty-something woman who posted a live-streaming video of herself on Periscope (a live-streaming phone app) in which she talked about how drunk she was and appeared to be driving through stop signs. For her ten minutes or so of fame, she was arrested for drunk-driving.
Your studio71 webcast on social media evidence is one of the most viewed in NITA history (watch it for free here), and you received a lot of questions both during and after your presentation. If you could generalize a bit, what does the nature of the questions tell you about where litigators and trial lawyers are with social media evidence?
Lawyers are thinking about it and wanting to know how to get and use social media in their cases without running afoul of any ethics rules. A few years ago, when I was talking about the use of social media to win cases, I found that lawyers would hurry to explain why it isn’t relevant to their types of cases. These same attorneys are now coming to me and wanting to brainstorm ways to find social media and discuss what kind of posts will help their case. The webcast questions I received, and the large number of people who registered for it, all tell me that the hardest part is over. Lawyers are now convinced that they need to think about and use social media in their cases, or else they will be on the losing side of the learning curve.
What up-and-coming social media channels should lawyers start monitoring now?
Channels that post content that is not permanent and disappears fairly quickly, such as Snapchat and an ephemeral feature of Instagram called “Story,” which allows users to send disappearing pictures and videos. With employers, colleges, law enforcement, lawyers, and others looking at social media activity, it was just a matter of time before millennials and Gen Z users would start moving over to sites where they leave less of a digital footprint.
What is your history with NITA?
I have been very fortunate to have taken or participated in NITA programs since very early in my career. I took the one-week Trial Skills program when I was probably a third-year attorney, and then went on to take the Teacher Training program about five years later. Since then, I have been a faculty member at both the Los Angeles and San Diego Trial Skills and Deposition programs.
What will you be working on professionally in 2017?
A number of things. I will continue teaching communications law and ethics at USC Annenberg School for Communication and Journalism, and working as an in-house counsel advising different business groups. I’m also excited about pursuing writing and speaking opportunities that give me a chance to educate the bar about social media evidence—without duplicating what I’ve already covered in my book. The good news is, there is no shortage of story ideas in the news and recent case decisions.
What do you collect?
I grew up swimming and body surfing in the ocean off of Redondo Beach and Catalina. Later on, I became a certified diver and have snorkeled or gone diving in some beautiful spots. The one thing I am always on the watch for are sea turtles, which has led to various friends gifting me a mini-collection of sea turtle-related objects.
When was the last time you traveled somewhere new, and what did you do?
I love traveling. In July 2016, I went to Venice and Amsterdam. My other big trip last year was in March, when I went whale watching in San Ignacio Lagoon, Baja California Sur. The grey whales and their calves would come right up to our boats. It was truly the most amazing experience of my life.
What has been the most memorable meal of your life?
I am a foodie who enjoys cooking and eating out. It is really hard for me to name just one meal. Perhaps the most memorable would be eating Indian food in a small café in Kathmandu, Nepal, before starting a 2½-week trek in the Annapurna region.
What do you hate to do?
Nothing really. I don’t even mind standing in line, going to a crowded venue, or dealing with a difficult person. I guess by this list, you can tell what does challenge me at times, but I see it as an opportunity to be more patient and kind.
Michelle, the time has come for you to lip-sync for your life. What song do you choose?
“Let It Go,” by James Bay. Seems like the perfect song to sing if I was lip syncing for my life (and having to do it terribly off-key).
What’s your motto?
Work hard, play harder, and be kind to others along the way.
Enjoy this interview? Find more of our “Asked and Answered“ interview posts with NITA personalities here on The Legal Advocate.
In State v. Peyton, Taylor Addison suffered first and second degree burns when her parked vehicle was sideswiped, spilling coffee over her left hand. No vehicle stopped after the accident, but Addison claims she saw a car identifiable as Jordan Peyton’s driving away from the scene. Peyton has pled not guilty to all charges and claims that she did not collide with Addison’s car.
This second edition of State v. Peyton adds social media evidence to a case that also provides student opportunities to consider criminal trial issues such as medical expert testimony, character evidence, bias impeachment, and much more.
Author Elizabeth Boals has also created an extensive teaching manual to not only help the professor with testimony but to provide skill exercises in the rules of evidence, refreshing recollection, impeachment by omission and more.
Retail Price: $38
Meet our staff members! While NITA is the faculty and author network that brings you learn-by-doing programs and materials, NITA’s professional staff in Boulder is the engine, director, and glue that makes it all possible. We coordinate, expand, envision, and deliver highest quality and efficient support of NITA’s mission. We direct our amazing network of lawyers, as they teach in the unique NITA way.
Over the next few months, I will be introducing you to NITA’s staff. This month, I bring you greetings from our Programs Department. As you work with them, you will admire their dedication – just hear what they have to say!
Program Specialist II
My eagerness to further NITA’s Mission engages my full support as I administer my programs, and “lend a hand” in the department’s other projects and goals.
I see NITA’s mission, creating the best advocates for our legal system, to be a constantly evolving goal. As we set the level of excellence in legal advocacy training, I draw great satisfaction from knowing that it means so much to so many people.
Given my familiarity with program content, case files, materials, and other faculty resources, I consult with staff to help them support programs that succeed, and help support program directors.
NITA’s leadership in improving the quality of trial practice is unquestioned. Our philosophy of inclusion, regardless of the lawyer’s position in a case, means that NITA constantly strives to improve the quality of representation for all, including the underserved client base.
Senior Program Specialist
I contribute through pitching in on some of the more strategic aspects of our department, along with administering programs.
NITA for me is a job, a mission, and a vision. What makes it important personally is the big, awesome family; I value my NITA friendships inside and out, and enjoy seeing the program participants bond. As we face a changing market, it is our relationships and dedication to mission that carries us into the future.
Senior Program Specialist
In addition to running my programs, I support the team from my customer service and IT background, helping enhance the client experience as well as our staff’s efficiency.
I’m proud to work at NITA. We truly help empower attorneys to better serve clients, including the underserved. I picture my work as an integral part of that mission, as NITA continues to grow as the premier CLE provider in the legal profession.
Program Specialist I
I work to be a fun, awesome, sassy member of Programs, engaging with my team and my faculty, and working to create a well-oiled machine as we organize our programs.
I personally feel the most important role we have here is providing excellent customer service to our participants. It’s a pleasure coming to NITA each and every morning!
Director of Programs
As the lead director of this amazing Program Department, I coordinate our goals and our work to provide consistently excellent programs for both public and private programs.
NITA provides chances for lawyers to get on their feet and learn. We have the teachers and the method to help advocates speak for others. We are aiming to provide relevant training for a changing playing field in all areas of advocacy.
Program Specialist I
I add to the group’s success by working to run each of my programs smoothly, and helping other specialists on the team.
NITA is a great opportunity for lawyers to build new skills and strengthen techniques they have used in the past. I feel NITA increases their comfort going into a courtroom. We at NITA expand into the future as we perfect what we do by working together.
As ED, I am proud of these Programs team members. Please say “thanks” the next time you talk to them!
And thank YOU.
Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy
In November, NITA sent two faculty, Judge Michael Washington and Geraldine Sumter, to Nigeria in support of an advocacy training program organized by Lawyers Without Borders and the Office of the Public Defender of Lagos State. We’d like to share the opening remarks to this successful program that Olubukola Salami, the director of the Office of the Public Defender, delivered on the first day of the sessions. We are grateful for receiving Mrs. Salami’s permission to share her welcome address with you, along with photos taken during the trainings.
The Honourable Attorney General and Commissioner for Justice, Lagos State Ministry of Justice, Mr. Adeniji Kareem,
The Representative of the Ambassador of the United States of America, Ms. Rosalyn Wiese, the Director, International Narcotics and Law Enforcement Affairs, The United States Embassy, Abuja,
The Judges of the High Court of Lagos State,
The Judges of the United States of America,
The Permanent Secretary, Lagos State Ministry of Justice,
Our Distinguished Guests,
All the Participants,
I am highly delighted and honoured to address you on the occasion of the Trial Advocacy Training Course organized by the Office of the Public Defender in collaboration with the National Institute for Trial Advocacy, Boulder, Colorado, United States of America.
The Office of the Public Defender (the first in Nigeria) was established on the 24th of July, 2000, to provide qualitative legal aid through free representation in court and to ensure that all persons resident in Lagos State irrespective of means, sex, tribe, or religion have equal access to justice.
Our practice scope cuts across most areas of legal practice consisting of both criminal and civil litigation. This requires that our advocacy skills be optimum. The Office provides legal services for matters in the criminal and civil divisions of the courts sitting in Lagos State. We institute divorce petitions, debt recovery cases in the Magistrate Court, and employee–employer cases at the National Industrial Court, where in a year and a half we have prosecuted over one hundred cases and counting.
As advocates and public defenders, it is important that we represent our clients who are the common man to the best of our abilities, as every Nigerian has a constitutional right guaranteed by section 3(6)(c) and (d) of the 1999 Constitution to representation and participation at the trial of his case.
A lawyer without the basic advocacy skills both for trial purposes and otherwise is a disaster waiting to happen, as he needs to stand for his client and make a convincing case on their behalf before a court.
As an office, we have been keen to raise and improve our advocacy skills as a unit, especially as this office is the only department within the Ministry of Justice that is consistently involved in trials in almost every court across the State.
Ladies and gentlemen, the timing of this training course could not have been more appropriate, with the introduction of Section 268 and 269(1) into the Administration of Criminal Justice Law of Lagos State 2015 for the first time in Nigeria.
We are quite excited that this reputable international Institute are here in Nigeria to train us and are doing so at no cost to us. We are immensely grateful. At this point, I must extend my sincere appreciation to the National Institute for Trial Advocacy and Lawyers Without Borders who put together such a distinguished team and the Government of the United States of America. We indeed count it as a privilege and a gift. We hope that this would be a continuing collaboration.
It is our expectation that the training would assist us to become better lawyers both inside and outside the courtroom. We hope the training will inspire confidence and improve our capacity as lawyers both for trial purposes and our written addresses.
Your Excellencies, distinguished ladies and gentlemen, it is my singular honour and privilege to welcome you all. Thank you.
NITA is thrilled to announce NITA’s Class of 2017 Next Generation (NextGen) faculty: Solomon Chang, of the San Diego Office of the Primary Public Defender; Allison Rocker, of the Denver District Attorney’s Office and the Rose Andom Center; and Moe Spencer of the Spencer Palace Law Office.
Our congratulations go out to Solomon, Allison, and Moe. We welcome you to the NITA family and look forward to hearing about your adventures as you travel from coast to coast in support of programs, mentor attendees through the rigors of NITA training become lifelong friends with your fellow faculty members.
Get a preview of Moe as an instructor in his webcast on killer opening statements. It airs this Thursday, January 19. Register now.
Solomon is an experienced trial attorney for the San Diego Office of the Public Defender. His practice focuses solely on representing individuals charged with the most serious criminal offenses. He has tried over forty cases to verdict, including homicide and child sexual assault cases.
Solomon’s unique skillset as a gifted advocate first became apparent while attending California Western School of Law. In his first year, he became the first student to win two separate advocacy competitions. In his second year, his trial team won first place in the American Association for Justice’s Student Trial Advocacy Competition. In his third year, Solomon worked abroad in Santiago, Chile, assisting in trial skills training for Chilean public defenders. At the time, Chile had just begun transitioning toward an adversarial criminal justice system modeled after the United States.
After graduation, the school brought Solomon on as an adjunct professor to teach Trial Advocacy. He also began coaching competitive mock trial teams. His students have consistently won regional and national competitions.
Solomon’s passion for advocacy and teaching soon caught the eyes of his supervisors at the Public Defender’s office. He now assists with training and development for new attorney hires. In 2015, Solomon attended NITA Teacher Training in New York and was subsequently asked to teach at the NITA Pacific Regional Trial Skills Program in San Diego. His natural ability to assist students in honing their trial skills while using the NITA method ultimately led him to his nomination as one of this year’s NextGen rising stars.
Solomon received his B.A. from the University of Texas at Austin in 2005.
Allison Rocker was sharing a meal with a Bedouin tribe in a crowded grass and mud hut on the outskirts of a Moroccan desert when she decided that she wanted to be a prosecutor.
With over a decade of experience in motions and trial practice, Allison thrives as a public speaker and mentor. Her passion is ending violence against women and children, as well as the fair treatment of all those involved in the criminal justice system.
A Colorado native, Allison grew up skiing, hiking, and wanting to be outdoors as much as possible. Her undergraduate career started at the University of Oregon but, after eight months of solid rain, she decided to transfer to CU–Boulder. A combination of life experiences as well as advice she received from a mentor while attending the University of Denver’s Sturm College of Law generated a growing interest in the criminal field.
The majority of her career has been focused on crimes against women and children. She is currently a Senior Deputy at the Denver District Attorney’s Office and the Domestic Violence Prosecution Specialist at the Rose Andom Center—a collaborative center that houses both community organizations and government agencies that work together to end domestic violence. She has taught different aspects of trial practice to law enforcement, lawyers, interns, and advocates from around the state and outside of Colorado.
Prior to trial, she usually practices her opening and closing arguments in front of her dog, Kalla, who tends to provide very little in the way of feedback.
Merwin Moe Spencer is the principal attorney of Spencer Palace Law Office in Everett, Washington. Moe was brought up in the West Indies on the island of Trinidad and Tobago before moving to Texas as a child. During college, Moe went abroad for two years and lived in Cannes, France, where he studied art and languages before moving on to studying public policy at Oxford University in England. Moe earned his B.A. from Rice University in 1997, and began work as a high-tech programmer and software trainer for startups.
Moe attended the University of Oregon School of Law in Eugene from 2002 to 2005. He was president of the Black Law Student Association and a member of both the Street Law Club and the Criminal Defense Clinic. While in law school, Moe worked as a public defender in Lane County and at Davis Wright Tremaine in Portland as a summer associate, where he worked on class actions suits, toxic torts, mediations, business litigation and arbitrations, and trial work. He later clerked for the Honorable Chief Presiding Judge Ancer L. Haggerty of the U.S. Federal District Court of Oregon in Portland, preparing summary judgments motions and writing opinions for the judge on Title VII discrimination, Social Security benefits, and personal jurisdiction issues. He received his J.D. in 2005.
After law school, Moe was the Assistant to the Secretary of State of Oregon, Bill Bradbury before becoming the State Director of Government and Legal Relations for the American Cancer Society (ACS), where he lobbied and helped pass bills in the Oregon legislature in Salem on cancer issues for two years. Moe then went back into law practicing as a criminal defense, family, and trial attorney in eastern Washington for the Davidson Law Firm in Pasco.
Moe trained with Gerry Spence in Wyoming at his Trial Lawyer’s College in 2007 and attended National Criminal Defense College at Mercer Law School in Macon, Georgia, in 2012.
Now having his own firm, Moe has completed over forty trials to verdict in both federal and state courts and now focuses on representing marijuana growers and processors, as well as speaking nationally at colleges and universities and writing on Washington State’s marijuana laws and social justice issues (including medicinal versus recreational use, state versus federal, edibles and oils packaging, child protection and juvenile marijuana issues).
Moe takes on select cases dealing with civil rights, protest law, criminal law, murder cases, sex cases, defending termination of parental rights, juvenile and restorative justice law, expungement of past criminal records, marijuana law, and contracts and LFOs (legal financial obligation of court fees) write-offs. Moe is represented by Kirkland Production for his speaking engagements.