1. Beware the overshare. Avoid providing TMI (too much information) a la Miley Cyrus. We’ve all seen ttweeters who tell us every time they go to Starbucks, or folks that post several times each hour. Not only does this annoy readers and prompt them to un-follow you, but it also gives the impression that you have nothing better to do than to post inane content all day long. Post frequently only when you have meaningful content to convey, like when you’re at LegalTech or the International Legal Technology Association and new people and ideas are inspiring your posts.
2. Don’t be MIA. Ever go to look up a company’s LinkedIn, Twitter or Facebook page, only to find that it doesn’t exist or is so scarcely populated that it looks like a dummy corporation for the Mob? Not good! Vendors need to establish sites on at least these three main social media venues. Even if the sites are not constantly posted to, the content about the company should be accurate.
3. Be Proactive, Not Reactive. Many social media blunders result from vendors seeing a competitor’s activity and trying to pull stunts to outdo them. Hasty and reckless social media activity can be incredibly damaging and it lives forever on the web, so take a step back and plan out your strategy and tactics. Post responsibly!
>> Jobst Elster, head of legal market strategy, Envision Agency, Atlanta. Email: elster@EnvisionAgency.com. Website: www.EnvisionAgency.com.
1. LOOK AT ME! The biggest mistake vendors make with social media is prescribing to the LOOK AT ME! "strategy." Social media success is not measured by who sends the most tweets or publishes the most posts, but the value of the content. A good way to measure the quality of your content is by the numbers of new followers you gain. If you are distributing content that is valuable, people will follow you to receive it.
2. Hijacking an event hashtag. Used the right way, industry event hashtags (e.g., #LTNY for LegalTech New York) helps build your audience, but often people hijack those hashtags. Don’t have every person who works for your company retweet a message sent from your main company account. You can tell when you look at the feed of the hashtag and the same message appears 10 times in a row. Be respectful.
3. Hoping it will go away. Facebook has more than a billion users and Twitter logs 241 million monthly active users. According to a DOMO infographic, every minute of every day 27,778 new posts are published on Tumblr; Foursquare users check-in 2,083 times; and YouTube users upload 48 hours of new video. The bottom-line—you simply cannot ignore social media. While you won’t become an expert overnight, social media tools now make it easier than ever to get started. Start small. Pick two, e.g., Twitter and LinkedIn, and spend 30 minutes a week building your online presence.
>> Melanie Brenneman, senior account manager and social media strategist, Edge Legal Marketing, Minneapolis. Email: mbrenneman@edgelegalmarketing.com. Website: www.edgelegalmarketing.com.
1. Lose sight of the big picture: Aside from posting politically incorrect tweets or following someone who tells the world what she or he is doing every minute of every day, the number one mistake is thinking that social media is a silver bullet. You aren’t going to share one post and have 20 Am Law partners clamoring for your software. Activities around social media must align with your marketing plan and goals. If your company is focused on, for example, growing its presence on the East Coast or targeting law firm CIOs in order to win 10 new clients in Q3, then your social media efforts should have a special focus on supporting that goal.
2. Spray and pray: From LinkedIn to Instagram to Confide, the number of social media channels grows every day. It’s very tempting to take on as many of these channels that you can—after all, don’t you want to build an online presence and recognition for your company? But stop. Take the time to carefully evaluate each social media channel, its advantages, its benefits and—most importantly—if your prospects and clients are using it.
3. Concentrate on the numbers: “Hi, I’m X. I have 3,000 Twitter followers.” My (internal) response: “Who cares? How does that define you as an individual?” We want to measure progress and one of the most common defaults is to define success on the social media front based on the number of followers. A recent study showed that about 40 percent of Twitter accounts are owned and populated by bots. Know who your followers are, connect with them authentically and see them as more than just numbers.
>>Valerie Chan, principal, Plat4orm Public Relations, Seattle. E-mail: valerie@plat4orm.com. Website: www.plat4ormpr.com. Social media can help drive web traffic and raise visibility on search engines, and generate new leads; however, most posts on sites, like Twitter and LinkedIn, are replaced by new entries every 10-15 seconds. And most people just don't have time to stay connected 100% of the time. In order to use social media effectively, organizations should avoid these three major mistakes:
1. Skipping the employees in the process. All employees are important—especially when it comes to evangelizing your company. Make every employee a social media evangelist; re-tweeting, sharing and linking to corporate posts will promulgate the network.
2. Assuming people will follow. Many people just don't have time. Make it easy for your prospects to follow you by including your social media links on all outbound marketing items—on the website, in press releases, in advertising, on white papers and on collateral.
3. Forget to protect the brand. With all things electronic, the brand is the most important company asset—and it needs to be properly protected. Social media sites, especially Facebook, expose personal aspects of employees' and friends' lives that could harm an organization's reputation. Establish strict policies for commenting, linking, following and tagging as part of the HR policies and procedures.
>> Edward Colandra, associate, Legal Vertical Strategies and legal technology sales and marketing consultant, InnerVision, New York. Email: ecolandra@lvstrategies.com. Website: www.LVStrategies.com.
1. Not having a strategy that ties social media into your overall marketing plan. Spending time on LinkedIn, Twitter, Facebook, etc, without setting expectations for measurable results can be a waste of time. There is little value to simply measure re-tweets, followers or likes. Rather, determine the expected tangible results in awareness, demand generation, and/or sales that your plan expects, and decide how your social media activities will produce the desired results.
2. Commercials: LinkedIn can be great place to develop a well deserved reputation. But when done wrong, answers to questions are merely a poorly concealed commercial for your product or service. Instead, engage in conversation. Respond with suggestions. While it’s OK to reference your own product, a potential client will likely respond to a sincere willingness to be helped through a question or crisis. An epic failure sounds like “Hey, call me. We have a one-of-a-kind, best-of-breed service that will cure all your ills. When do you want to see a demo?”
3. Missed connections: Each of us develops a personal brand via social media. But failing to make an obvious connection between you (the individual) and your company is a mistake. People follow you because they expect a personal opinion from an expert. That expertise should logically be connected to the values your companybrings to the market, and thereby enhance the value of both.
Compiled by Monica Bay, editor-in-chief of Law Technology News. Twitter: @lawtechnews @LTNMonicaBay. If you have a question for the marketers, email mbay@alm.com.
The number of companies that have taken disciplinary action against employees for conducting inappropriate behavior on social networking sites has doubled from 2012 to last year, according to a recent survey of more than 100 international companies conducted by Proskauer Rose.
The firm, which on April 29 released a new edition of its annual report called “Social Media in the Workplace Around the World 3.0,” said the misuse of social media among employees is skyrocketing up from previous surveys in 2011 and 2012 where approximately 31 and 35 percent (respectively) of some 250 multinational business respondents reported misuse to more than 70 percent in 2013, according to Proskauer data. The firm said the uptick in misuse is because social media platforms, such as LinkedIn, Twitter, Facebook, Instagram, Pinterest and others, are currently used by nearly 90 percent of businesses.
“The more that people use social media for business, the more likely it is that there will be inappropriate conduct,” said Dan Ornstein, co-head of international labor and employment law group at Proskauer, in an LTN interview. Ornstein is based in London.
More than half (52 percent) of responding businesses said that social media use is an issue for their company, according to the Proskauer report, and more than three-quarters (81 percent) of companies say they expect the issue to increase in the future.
As a result, the number of businesses taking action to prevent an employee social media faux pas that could potentially cause a data breach has jumped about 20 percent since 2012, according to report data.
PREVENTING SOCIAL MEDIA GAFFES
Law firms, like corporations, suffer from social media gaffes and have taken measures to prevent them. Social media posts from attorneys at big firms have to go through a compliance process, to ensure that confidential client information is not mistakenly made public through an inappropriate post, Ornstein said.
However, Ornstein and industry professionals agree that more needs to be done to prevent social media misconduct in law firms and businesses to protect data.
“The most important thing that firms can do in order to mitigate risk is to initiate policies and procedures regarding this area and ensure that employees sign off on them,” said Eyal Iffergan, president and CEO of Hyperion Global Partners, to LTN. While 80 percent of firms have social media policies in place, according to Iffergan, many do not make their employees sign a document saying that they have read the rules and understand the potential pitfalls.
“This is a very important step,” said Iffergan. “It ensures the firm has a defensible position in the event a negative incident takes place.”
Firms should also offer employee training courses, which will help educate employees on the potential impacts that social media can have on careers and the firm in general, as well as tools to deal with a negative incident if one were to crop up, Iffergan said.
Authenticating social media for litigation is a relatively new phenomenon, but it has not demanded the creation of any new legal theories. In today's litigation, evidence may come from Facebook, Twitter, YouTube, blogs or other social forums. Fortunately, the Federal Rules of Evidence (or applicable rules in your jurisdiction) are all that lawyers need to authenticate social media, blogs, websites and other online content. Basic steps have not changed, but social media adds a few new wrinkles.
Courts recognize that there are special challenges in authenticating social media. As noted inGriffin v. State of Maryland No. 74 (Maryland; Apr. 28, 2011), there is always a “potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user.” In that case, the court concluded that a printout from a social media site “requires a greater degree of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the site,” to determine whether a person in question actually published a post.
As Griffin found, problems arise from a lack of detailed information. Lawyers often try to enter social media evidence into the record in the form of a website printout. But when social media is out of context, or identifying metadata and links are stripped, authentication is nearly impossible. However, when properly preserved, social media and website content can be vetted using the existing rules of evidence.
U.S. District Judge Paul Grimm, of the District of Maryland has addressed how courts can resolve digital media and social media disputes. In Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D. Md. 2007), Grimm identified the issues a lawyer must consider when determining admissibility of digital evidence. They include the same standards applied to other types of evidence: relevance, authenticity, hearsay, the original writing rule and probative value as compared with possible unfair prejudice.
The rule that applies most directly to authenticating social media is Rule 901 of the Federal Rules of Evidence. However, Grimm notes that lawyers and judges have made mistakes admitting or denying social media when they forget to first consider Rule 104(a) and (b). Under those rules, a court must consider if a jury could reasonably find that the evidence is authentic—even if there is reason to question the evidence, a judge should not throw it out, but allow the jury to consider the issue. For example, in Parker v. State of Delaware (Del. Sup. Ct. Feb. 5, 2014), the defendant argued that social media evidence had to be authenticated by “testimony of the creator, documentation of the Internet history or hard drive of the purported creator's computer, or information obtained directly from the social networking site.” That standard had been applied in the Griffin case. However, the Parker court, following precedent from a Texas court case, said only that “the jury ultimately must decide the authenticity of social media evidence.”
That means a party objecting to digital evidence has a high burden. They have to show that the evidence is in fact a fake. “A trial judge should admit the evidence,” Grimm wrote, “if there is plausible evidence of authenticity produced by the proponent of the evidence and only speculation or conjecture—not facts—by the opponent of the evidence about how, or by whom, it ‘might’ have been created.” He continued, “Too many courts that considered admissibility of social media evidence completely overlooked this important distinction and, in doing so, made questionable rulings excluding evidence that should be admitted.”
Given that analysis, social media and website evidence is actually difficult to reject from most matters. However, in order to convince a jury that any tweet, Facebook post or email is ultimately authentic, a lawyer will need solid forensic analysis. As in Lorraine v. Markel American Insurance Co., Grimm noted that in applying[the authentication standard to website evidence, "there are three questions that must be answered, explicitly or implicitly: 1) What was actually on the website? 2) Does the exhibit or testimony accurately reflect it? 3) If so, is it attributable to the owner of the site?”
Getting to those facts sometimes takes research and analysis. In State of Connecticut v. Eleck, AC 31581 (Conn. Ct. App. Aug 9, 2011), the court found “an electronic document may continue to be authenticated by traditional means such as the direct testimony of the purported author or circumstantial evidence of ‘distinctive characteristics’ in the document that identify the author.” Once the proponent produces sufficient evidence to convince a reasonable juror that the social media evidence is authentic, the burden of production shifts to the party objecting to demonstrate the item is a fraud. Lorraine outlined some sensible steps to find out if a social media posting is likely authentic:
1. Ask the purported creator if he or she indeed created the profile and also added the posting in question.
2. Search the computer of the person who allegedly created the profile and posting, and examine the computer’s Internet history and hard drive to determine whether that computer was used to originate the social networking profile and posting in question.
Before lawyers go requesting—and searching—through two years of Facebook wall posts, it would be best to brush up on where the courts stand with respect to social media and e-discovery. A recent article on the Socially Aware blog by Reema Abdelhamid and J. Alexander Lawrence does just that. The authors explore “various approaches taken by courts to address social media-related discovery challenges.”
The judgments range from completely quashing broad requests to reviewing sites in camera, the authors note. More than once courts have said “no” when a party demanded broad discovery from social media sites for failure to show relevance to the dispute. Abdelhamid and Lawrence use the example in Ford v. United States,where the U.S. District Court of Maryland rejected the government’s request for a broad social media discovery plan. “The court denied the motion to compel, holding that the government’s request was not narrowly tailored” and didn’t describe the categories of material sought, they explain.
Other courts show more lenience, and even when judges deny a request, they allow the party to renew a motion if circumstances change. In Root v. Balfour, an appellate court left a case open for further developments, e.g., social media information may be discoverable in the future even though, at that point, it was deemed not relevant, explain Abdelhamid and Lawrence.
In Maihoit v. Home Depot, a court didn’t quash a discovery request for social media, but severely narrowed it, Abdelhamid and Lawrence say. The defendant demanded a broad array of social media information, such as profiles, postings or messages that showed the mental state of the plaintiff, pictures and conversations. The court limited the demands to social networking between the plaintiff and Home Depot employees only.
And in some contexts, courts opt for in-camera review. In a class action in Colorado, a court ordered the production of social media content for a private review to determine what was relevant.
Attorney Marlisse Silver Sweeney is a freelance writer based in Vancouver. MarlisseSilverSweeney@gmail.com. Twitter: @MarlisseSS. LTN: @lawtechnews.
>> Christy Burke, president, Burke & Co., New York. Email: cburke@burke-company.com. Website: www.burke-company.com.
>> Jobst Elster, head of legal market strategy, Envision Agency, Atlanta. Email: elster@EnvisionAgency.com. Website: www.EnvisionAgency.com.
>> Melanie Brenneman, senior account manager and social media strategist, Edge Legal Marketing, Minneapolis. Email: mbrenneman@edgelegalmarketing.com. Website: www.edgelegalmarketing.com.
>> Valerie Chan, principal, Plat4orm Public Relations, Seattle. E-mail: valerie@plat4orm.com. Website: www.plat4ormpr.com.
>> Edward Colandra, associate, Legal Vertical Strategies and legal technology sales and marketing consultant, InnerVision, New York. Email: ecolandra@lvstrategies.com. Website: www.LVStrategies.com.
