In cross-examination that had jurors on the edge of their seats, Goldberg Segalla partner Michael E. Appelbaum sought to discredit the plaintiff’s star witness in an automotive liability case this month with a relatively new kind of evidence: Social media.
Posts, photos, and videos Mike found on the witness’s Facebook page cast doubt on the man’s claim that the defendant was to blame for a two-vehicle accident involving the plaintiff because they seemed to show the witness was friends with the plaintiff, whom he claimed not to know.
Though legally risky, Mike’s strategy paid off in a resounding victory for his client as he prepared to show the jury videos of the witness and plaintiff fishing together. Don’t bother, the opposing attorney said; the plaintiff is discontinuing the case. The development brought jurors bursting from the jury room to high-five Mike, he says.
“They did not want that to end,” Mike says of his cross-examination of the recalcitrant witness, a UPS driver who denied he knew the plaintiff right up until the fishing videos were ready to roll. “I have never met a juror in 20 years who did not want a trial to end. This was TV-movie drama that played out in real life – and it involved a hot evidentiary topic.”
That hot topic is social media as evidence. Though still so new it’s little more than experimental—“There is a limited amount of case law on the subject,” Mike says, “though there’s more and more each day”—the use of Facebook, Twitter, and other social media in litigation is big and growing, affecting everything from family to criminal law.
“Few transformations have affected litigation and litigators as swiftly and as profoundly as social media,” according to the American Bar Association site. “Social media have become a big part of the way litigators do business, and they pose problems in the litigation process from the first time lawyers meet with their clients until after judgment is rendered.”
Today evidence for a legal case can come in a variety of electronic as well as physical forms, writes Jason Park on Law Technology Today. “These days the average person keeps much … information online, including posting on social media, which is why more and more cases are bringing posts from Facebook, Twitter, and other platforms into the evidence mix.” According to a survey by the staffing agency Robert Half, more than half of lawyers have reported an increase in lawsuits related to social media over the past few years.
“Questions about what information is discoverable, what information is admissible, and when, if at all, information must be disclosed to the other party are all critical issues,” Mike says. “There are attorneys at [Goldberg Segalla] that have had a judge deny use of social media one week only to have another judge allow it the next.
“This is an evolving area of law and this case is a win for the defense and our desire to use social media to impeach witnesses.”
Though social media-based evidence doesn’t work in every case—“If the witness denies that he has the account or denies that the photos are accurate, there is little an attorney can do unless you have a Facebook representative live in court to authenticate the page and posts,” Mike says—the strategy proved effective in the automotive liability trial.
“The UPS driver was a significant challenge for us,” Mike says. “If credible, he would most assuredly tip the scales in the plaintiff’s favor.”
That Mike knew little about the witness at first added to the challenge. “This witness was only made part of the case by the plaintiff in the weeks before the trial,” he says.
When that happened, Mike began searching online for information about the man. Though the witness had no criminal history, he did have a Facebook page, and Mike found it. Then the real work began.
“I spent hours digging through his and his friends, posts, photos, and videos and his friends’ friends’ posts, photos, and videos,” Mike says. “Eventually I found several photos and videos which appeared to show the UPS driver with the plaintiff. They were seen at parties together and fishing together. I found two Facebook live videos which showed the witness and plaintiff in a friendly dialogue with each other.
“While it appeared that I had stumbled onto a smoking gun, I was not convinced that the photos were actually the plaintiff. Nor could I be sure that the Facebook page belonged to the UPS driver, since I had never seen him before.”
But as soon as the driver walked into court, Mike knew he had the right guy.
The trial was the culmination of a case stemming from a February 18, 2015, accident at the intersection of Franklin and West Tupper in Buffalo, where both drivers claimed they had a green light. The UPS driver claimed he witnessed the accident; he testified that he saw Mike’s client, who was driving a panel truck belonging to his employer, run a red light while driving fast and talking on his cell phone. In truth, Mike’s client had a green light and no cell phone.
The win marks another success for Mike, a leader of Goldberg Segalla’s General Liability practice group and a seasoned litigator who tries cases in the state, federal, and appellate courts of New York—cases involving personal injury, sexual torts and abuse, truck and motor-vehicle accidents, and the sports and entertainment industry.