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The undeniable popularity of Twitter, Facebook, LinkedIn and other social networking sites has opened up a potential treasure trove of legal evidence, especially in divorce cases where a person’s whereabouts, “friends” and employment status are often relevant.

But most divorce lawyers are missing the boat.

“So few family lawyers even know to look for it,” said Melissa Brown, a Charleston, S.C. domestic relations attorney who has given seminars on the topic.

“Family law attorneys are really lagging behind other lawyers and judges,” agreed Lee Rosen, a divorce attorney in Raleigh, N.C., who authors the Divorce Discourse Blog.

Rosen, who routinely finds evidence on Facebook, said “most cases where there is evidence of adultery quickly settle,” such as where a straying spouse posts incriminating photos or wall-messages on his or her Facebook page.

In another case Rosen recently tried, a judge admitted evidence that one spouse sent a threatening message in a “friend request” to the other spouse.

And it’s not just the other side that lawyers have to worry about.

“Divorce lawyers should give a warning to all of their clients about the dangers of social networking during a divorce action,” Brown said.

Brown has sometimes encouraged clients to take down sites entirely, such as one client whose Facebook page included a photo of her and her boyfriend in a hot tub.

Loose tweets sink ships

Personal information from social networking sites runs the gamut.

“In divorce or child custody cases, what we look for is confessions - things they’ve done, places they’ve been [and] people they’ve had their child around,” said J. Benjamin Stevens of Stevens MacPhail in Spartanburg, S.C.

For example, a parent who is restrained from taking a child out-of-state might post photos of visiting Disney World or other vacation destinations with the child.

Or, in a custody case that Stevens handled, a father denied drug use but the background of his MySpace page featured marijuana leaves.

A person’s LinkedIn profile can contain evidence of earning capacity or job prospects that can be useful in disputes over support payments.

In one case, Rosen cornered a spouse in a deposition who was trying not to pay alimony by claiming he had no real job prospects after being laid off, while his Twitter messages clearly showed he was about to be hired.

Twitter, arguably the most spontaneous of the social networking tools, can be rife with accidental leaks.

“It’s so easy. If I’m tweeting from my iPhone I could easily do something I could regret later,” said Brown.

Take, for example, the soon-to-be ex-wife of singer Usher who recently tweeted in the middle of her divorce trial that her lawyer was “horrible” and asked where she could find a new one, apparently unaware that she was tweeting to all of her friends and beyond.

“People assume it’s all private and they are less cautious about Twitter and Facebook because it’s all new and different,” said Rosen, who noted that some Facebook users don’t pay attention to the privacy settings available and end up posting wall messages that they don’t realize are public.

What about your own client?

Brown used to enlist her legal assistants to go onto all of the social networking sites to do “damage control” on her own clients.

Now, as soon as she engages a client, Brown discusses his or her Internet presence and gets permission to tighten privacy settings or delete online photo albums.

“At first, some clients thought I was overreaching, but when I explain how a photo can be blown up and it could look inappropriate, they will take the site down immediately,” said Brown.

These early discussions with her clients is one reason Brown says she has successfully used evidence from social networking sites against other lawyers, but no one has used it against her.

Authentication

So far, family lawyers who have sought evidence from social networking sites have had no trouble obtaining it or admitting it into evidence.

“It appears that if you don’t delete these things, those records are available to you indefinitely. We have subpoena power to request they produce it for us,” said Rosen.

He added that he has not yet had to resort to seeking the records from the sites themselves because most people do not delete their tweets or Facebook postings.

Judges have also allowed Facebook and Twitter postings into evidence.

“It’s not a big step from offering e-mails to other electronic evidence that looks like e-mails. It isn’t that shocking anymore,” said Rosen, who noted that many of the judges in his state have their own Facebook pages and are familiar with the new media.

However, some lawyers expect that authentication could become an issue very soon, especially in divorce and custody cases where emotions run high.

“I have not encountered it yet, but it’s a huge problem in divorce cases because people can fake things,” such as creating a false Facebook or Twitter page and pretending to be the other spouse in order to send out threatening or inappropriate messages.

Questions or comments can be directed to the writer at: sylvia.hsieh@lawyersusaonline.com

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