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Legal Marketing Counseling Clients At the outset of a new case, clients should be


counseled against posting case-related information online in any form—blogs, Twitter, and Facebook, to name a few. In our personal injury cases, we tell them to avoid specifics about the case, the trial, their injuries, and the accident. Particularly in serious cases, we explain how every vacation photo and family picture will be used by the defense to argue the malingering nature of the plaintiff’s complaints. Like clips from secret video recordings, those posts and photos will not likely reveal the plaintiff’s pain afterward, or the amount of medication used to deal with the pain. These types of posts and photos should be avoided, if for no other reason than to limit opposing counsel’s fodder at trial. A tougher question, then, is what to tell the client


who comes to you mid-stream—the negligence happened some time ago, and the client has been posting photos and updates for a year. Can you tell the client to delete that social media evidence?


Virginia, which has been known to take a hard line


against social media use,5 examined this issue in Allied Concrete Co. v. Lester. 736 S.E.2d 699, 285 Va. 295 (2013). Stemming from a fatal trucking collision case, the trial court ordered monetary sanctions against the widowed plaintiff and his lawyer for deleting Facebook pictures, and for hiding instructions by the lawyer to the plaintiff to delete those photos. For reasons unclear in the opinion, the widowed


plaintiff sent a Facebook message to the defense lawyer, which permitted the defense lawyer some measure of access to the plaintiff’s Facebook account. The defense lawyer sent a document request for “screen print copies on the day this request is signed of all pages from Isaiah Lester’s Facebook page including but not limited to, all pictures, his profile, his message board, status updates, and all messages sent or received.” That request was accompanied by a Facebook picture of plaintiff wearing a “I [heart] hot moms” t-shirt.


5 See Hunter v. Virginia State Bar, 744 S.E.2d 611, 285 Va. 485 (2013)—Mr. Hunter, a lawyer, fought back against the bar which sought to discipline him for posting advertising content on his blog as well as client information.


42 Trial Reporter / Winter 2014


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