Being an expert witness is a demanding job, but expert testimony is crucial and can make or break a client’s case.
Credibility is paramount for any expert witness; it is the foundation on which an expert relies to effectively persuade judges and jurors. As an expert witness, it is essential to avoid situations that could be used to attack or damage your credibility on the stand, such as arrests, crimes, disbarments, and even social media posts.
Before accepting an engagement, do your homework: make sure you know what information is available in the public domain and check your privacy settings. In our experience, most experts don’t realize that social media activity can hurt a business. Therefore, we have prepared this article to discuss the dangers of social media as an expert witness and how online presence is sought by lawyers.
Part 1: The dangers of social media and the attack on an expert’s credibility
Today, a large part of the population relies on social media (Facebook, Twitter, Instagram, LinkedIn or another platform) to keep in touch with colleagues, friends and family. When used appropriately, social media is a valuable and inexpensive marketing tool for an expert to highlight and celebrate their expertise and successes. On the other hand, if not used carefully, social media could be the perfect way to discredit an expert witness and damage their reputation.
ounsel typically considers several factors before selecting an expert witness for litigation, including: Is the expert likeable, credible, confident, and knowledgeable? Does the expert have engaging communication skills and flexibility? Can this expert support the case in question? Are their skills better aligned with the main challenges of the subject? And more importantly, is there anything to be aware of that could damage the credibility or objectivity of the expert if taken to the stand?
As one expert witness revealed in court, statements made in the public arena — or opinions shared via social media — can become highly scrutinized by the opposing attorney as well as the withholding client. Depending on what is discovered, social media can be used to attack an expert’s credibility and objectivity.
It is common for opposing counsel to attempt to discredit the other party’s expert. The last thing an expert witness wants is for something personal to be raised in a legal setting.
Expert witnesses should be alert to social media activity, including their own posts, posts shared by others they follow, and what others may have posted about them. Once on the Internet, public domain content remains there for anyone to find. This can be an open invitation to attack by opposing counsel during cross-examination, particularly if an expert posts or re-shares information that alludes to a counter position to the one he is currently providing during of his testimony.
For example, let’s take an example where an expert testifies to the effectiveness of a particular drug. Imagine the potential repercussion if the expert shared an article online alluding to the contrary of that opinion or indicating a lack of benefit or effectiveness. Let us also think more generally. If an expert witness testifies in the opinion that it is unreasonable and absurd for an individual to get into a car without a seatbelt, it could be very damaging if footage were found online showing that same expert driving a car without a seatbelt. of security. This could certainly weaken the strength of their credibility and testimony.
An expert should remain consistent when sharing opinions or graphics online, in writing, or under oath.
While it’s especially important to keep social media in mind in terms of past posts, it becomes just as sensitive halfway through engagement. Before an expert witness is hired and disclosed, it is important that they know what is online. It’s best not to delete past posts in the middle of the engagement, and it’s especially important to keep in mind what gets posted throughout the life of the case. All case information is confidential, so the expert must receive permission to retain an attorney before sharing anything with another party, including online. An expert should avoid social media posts containing topics planned for mid-engagement testimony. It is also important to avoid discussing current or past engagements online.
Expert witnesses should not underestimate the power of the Internet and publicly available information. Law firms can easily find positive or negative information about an expert through Google. Simple, free research on the Internet can lead to discoveries that quickly impact an expert’s credibility and damage a client’s case. It is important to remember that once credibility is challenged in any case, it could be challenged in any case later and potentially harm the expert’s ability to obtain future assignments.
Part 2: How online presence is sought by councils and what to do about it
Many people are unaware of the extent to which personal information is publicly available online, even for those who try to hide themselves with privacy settings or by using a nickname or initials rather than their full name. In fact, there are a few details that can be found no matter what someone does, even if they don’t have a social media profile.
For example, political donations can be easily searched to discover the donor’s recipient, donation amount and frequency, and a person’s place of work when donating. Other information – such as witness property values, address history, voter registration, criminal records, licenses, and financial information such as bankruptcies and business records – is available to a researcher on the Internet. This information alone can give anyone a snapshot of an expert witness. But for those with social media accounts, there is so much more available to an interested researcher.
When it comes to social media, choosing a setting where only logins can view the profile can keep posts out of public view. But if a witness makes their profile public or allows “friends of friends” to see it, a wide range of people will have access to all the information posted.
While it may be obvious that posts, reshares/retweets and photos may be seen by others, it is important to consider what other information may be revealed. For example, a social media researcher might view the accounts a cookie follows or the posts, pages, and interests someone likes. During the social research of jurors before jury selection, we come across many people who seem not to take a political stance on social media because they don’t post anything about politics.
But if someone follows Bernie Sanders and MSNBC, or has “liked” posts about Elizabeth Warren or climate change, chances are they’re a liberal. Therefore, it’s not just about what gets posted and shared, but it’s also important to be aware of interactions – commenting on a post or even watching a video (if the app tracks it) can all be discovered. by social media researchers, as well as the accounts, interests, or causes that person engages with.
Often we have seen witnesses take great care in creating and editing a LinkedIn profile to look very professional, however, their other social media accounts are much less carefully maintained. So how can a witness have good “social media hygiene” and accounts that don’t damage their reputation? Here are some key reminders.
Like alcohol consumption, posts containing alcohol require moderation. A photo with a drink on vacation is good. But for someone who tailgates every weekend in the fall, they might only want to post pictures about it once or twice. And leave the booze out – people already know what happens at tailgates.
Avoid bad behavior messages/photos. If someone is tagged in a photo from an embarrassing night out, they can remove it from their page, ask the poster to remove it, and even report it to the social media platform to see if they’ll remove it.
Avoid political posts and balance the pages you follow. The country is divided; no matter what you think, half the country is likely to disagree. If social media is used to keep up to date with politics and current affairs, it is normal to continue to follow these politicians and organizations. But to avoid any potential backlash, it’s wise to follow accounts from both sides of the aisle. For example, continue to receive daily updates from The New York Times, but also follow The Wall Street Journal. After all, it is good for everyone to be exposed to various sources of information. However, don’t go too far in either direction on the spectrum, as this is a sign that you follow opinion-based reporting more than fact-based reporting.
Ultimately, it is good practice for those considering bringing in an expert witness to review all of their social media accounts. The suggestions in this article are a helpful guide in deciding what changes are needed to present a more professional profile on various platforms.
It is important to follow these steps before entering your next engagement and, most importantly, before your next trial begins. While jurors are unlikely to research a witness’s social media during a trial because outside research is prohibited, it makes sense to reduce the risk that an expert’s online presence will undermine their credibility or alienate them. the court for matters unrelated to the case.
Of course, it is possible for experts to continue to use social media to connect with friends and loved ones. However, remember that anything posted online can become public information, which can be easily identified and discovered with a little effort by a social media researcher.
© Copyright 2002-2022 IMS Consulting & Expert Services, All rights reserved.National Law Review, Volume XII, Number 166