Vail Daily column: Social media and the law
I’m a little disturbed.
Yeah, yeah, I know what you’re thinking. You’ve been reading my columns for umpteen years and you already knew that.
But what I’m disturbed about — at least on this occasion — is social media and how, like kudzu, it has begun to invade our legal process.
Call me a curmudgeon. I’ve been at this a long time. I’ve been called worse.
It’s not that I’m a Luddite; I was, in fact, an early adopter. When I first began my practice, people would ask me what the brick was on my desk. When I was done explaining that it was a computer and what a computer did, the most common response I got was, “You have a secretary, don’t you? Why do you need that?”
Times, admittedly, have changed.
And in many ways, in law, as in so many other things, our electronic age has multiplied efficiencies. What took me days, I can often accomplish with a couple of key strokes. Gone are the days of trucking to the law library, scouring the shelves, and breathing in the IBM effluvium as the photocopier churned away. Instead, the legal world is nicely hyperlinked.
So what then is my beef?
It’s this: the law — felony trials especially — should not be a popularity contest or the latest reality show. I have written before about what, by my lights anyway, is wrong with the recent trend to make murder cases (read this O.J. Simpson, Casey Anthony, Jodi Arias and, most recently, George Zimmerman) entertainment, complete with celebrity judges (Andrew Cuomo, Jeffrey Toobin, Mark Geragos, the stone-faced Gloria Allred, and the less-than-adorable Nancy Grace).
But, hey, you can vote with your remote. If enough of us don’t watch, Darwin says, given time and opportunity, this too shall pass.
What’s worse, though, is the disturbing recent trend which, if not quite on display in the Trayvon Martin tragedy (and, make no mistake, it is a tragedy now matter who ends up the winner in Judge Debra Nelson’s courtroom), is at the least buzzing in the background. And that is the increasing place that social media plays in high profile — and especially in broadcast — trials.
The blogosphere and twittersphere are alive with commentary, reviews, opinions, hatred, scorn, malice and impressions. And don’t think for a moment that the attorneys aren’t paying attention. They would be remiss if they weren’t.
But is it right — is it “just” — is it the way our system of law and order was intended to function for the attorneys to tailor their cases to how popular their performances are, and/or how the “performances” of the various witnesses resonate in social media? Does social media deserve a place at the table of litigation?
Perhaps it is only different in scale. Attorneys have always tried to read the jury. Maybe in the wee hours of their trial prep, they scan the news to read their own reviews. I have succumbed myself, once or twice, to that guilty pleasure and to indulging in believing what I read to be true.
What is different though, is that when an attorney tries to “read” a juror, it’s like trying to divine meaning out of tea leaves. Yes, there may be a clue here and there — a certain nod of the head, some body language — but I’d venture just as often a smile at a propitious moment is just gas. And that’s the point; the lawyer cannot ask the juror what he’s thinking or how the lawyer’s doing. In the same way, when a lawyer reads the paper, at least most times, it is just reporting; there is no agenda being served.
Not so with social media.
And then there is the volume. I challenge you in the time you have left on this earth, however young you may be, to count up all the blogs and tweets and posts that have been penned about the Simpson-Jackson-Bryant-Anthony-Arias-Zimmerman case. If you come up with a number, good for you. I suspect that all the zeros would easily fill the space allotted to me in my next column.
The point is this; should attorneys be swayed by all the noise? Should it matter if their performance — to anyone other than the jury — be bravura or a dud? Shouldn’t the point be to give the accused his or her day in court and for justice to be served? And isn’t justice just a little compromised if the attorneys are trying to win Miss Congeniality?
Surprisingly, lawyers are people too with all manner of human needs and foibles. But should the need to score points in the social universe trump a lawyer’s obligation to invest his efforts solely for the client’s weal? Even if the lawyer employs the flood of social commentary for what he may think to be client’s advantage, can he be sure that’s really so? The commentators are simply not in the courtroom and their agendas are obscured. Even if the influence may be subtle, it is influence, and perhaps pernicious influence, nonetheless.
Call me old fashioned but while I applaud transparency and believe that freedom grows in sunlight, might we not all be just a little better off to warm a bench in the courtroom if we have a particular interest and otherwise to just say nyet to TV cameras in the courtroom?
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at either of his e-mail addresses, firstname.lastname@example.org or email@example.com.