“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.
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