Sebring Bar Speech

							  Social Media, An Ocean Lawyers Find Themselves Swimming In

                    May 30th, 2012 Highlands County Bar Assn.

Thank you David.

As a journalist who follows the law, I wanted to find something appropriate

to say this afternoon. And so I found a few lines from author Stephen

Vincent Benet's, The Devil and Daniel Webster.

Daniel Webster: {speaking to the devil} says, "You seem to have an

excellent acquaintance with the law, sir.

That is not my fault, the Devil replied. Where I come from, we always

have the pick of the Bar.


I also looked at what journalists have said about lawyers.

And William Shakespeare said....well at the moment I have forgotten what
he said. {smile}


Poet Robert Frost said a jury is 12 folks picked to figure out which side has
the best lawyer.


And Oscar Wilde seemed to get it right when he said, "The public has an

insatiable desire to know everything except what is worth knowing.
Journalists are keenly aware of this, and endeavor to meet their demand."

****
I am very pleased to have your invitation to make this connection with the

legal community in Sebring this afternoon and to use the opportunity as a

guest of your membership to try and meet a very ambitious objective.


I am going to try and show the progression from judicial icon Justice

Oliver Wendell Holmes Jr., to social media and finally to the Casey

Anthony trial in Orlando. In the event we can together follow the growing

convergence of the law with my profession.


I like it that Justice Holmes was once an editor and writer who said, "The

life of the law has not been logic, it has been experience." Today our

common experience is very much shaped by information technology, and

the internet.


As a student of cultural change myself, I find Holmes judgment has

application for our own Web 2.0 generation. Confirmation for his point of

view can be noted by a reference to one of Justice Holmes most famous

opinions. He wrote the majority opinion in Buck v Bell at the turn of the last
century, which upheld the forced sterilization of Carrie Buck, a woman who

lived until the year 1983.


She was a woman who was thought to be of inferior mental capacity. The

distinguished Supreme Court Justice wrote the majority opinion which

supported the interests of the several states to have a pure gene pool and

against the individual right of this woman to be fertile. I have zero doubt

that if Justice Holmes were on the court today, he would declare eugenics

discredited, as we all do. Culture moves forward and carries us all with it.


Sometimes the law may lead its culture, as in Brown v Board of Ed. But

sometimes the law may follow it. Plessy v Ferguson comes to mind. As in

the cases of Buck v Bell and Plessy, the law's relationship to its culture

may in retrospect sometimes seem to be very much a work in progress.


Just saying, in Holmes day it was the next generation of lawyers fresh out

of law school that would soon question the contemporary cultural

obstacles to progress in their time and seize the chance to engage and

lead their profession into the future. The "older" generation who were not
leading of course, resisted change.


A French journalist wrote at the dawn of the Age of Enlightenment, "The

only thing constant in life "is" change." Picking up on his sentiment, I don't

believe it is news to anyone here that in 2012, the information technology

revolution has created a changed cultural environment for us all.


In 2005, The World is Flat, was a book published by Thomas Friedman

which opined that information technology has a been revolutionary dynamic

let loose in our contemporary world and it goes around knocking down old

established barriers to progress. What is left in its wake is a more flat,

open environment, one that invites change. So with barriers to innovation

removed, new opportunities surface. A sort of "creative destruction" in

Friedman's view. The name Steve Jobs and Apple come to mind. But also

Mark O'Mara, George Zimmerman's attorney from up in Sanford is a local,

recent example.


In the event, those who maximize opportunities from our flattened cultural

landscape become leaders in today's "new" world. The thing is, those who
don't embrace change, are likely to become followers and by default may

be self defined as "old school."


My theme today is that social media is an ocean lawyers find themselves

swimming in. If social media is an ocean, then in 2012 we certainly are

beginning to see the rise of its high tide. It seems the Information Age

environment of this century is throwing out loose tsunamis almost every

day. Although George Zimmerman's attorney over in Sanford broke new

ground by setting up a website for his high profile client's defense

recently, I think we can best mark the convergence of social media with the

law by observing its influence on non high profile cases.


I listened to a panel discussion recently of several lawyers who were

engaging a Dr.Amy Singer, on the subject of social media analytics. All the

lawyers on the panel were suspicious of social media. Let me quote one

attorney who spoke for the panel. He said, "As a trial attorney myself, I
don't want to hear what anyone in the social media has to say about my

case." There are many attorneys like him who view social media

suspiciously, or even as a threat to their client's due process rights.
Lawyers with this perspective reject any professional relationship that

involves social media, especially social media research.

Let's look at what causes resistance in the legal community to social

media. We have all heard about the googling juror. We know about

mistrials, appeals and contempt fines that have resulted. One juror tried to

make the prosecutor his Facebook friend during voir dire. And there are

loads of instances where jurors were searching defendants histories on

the internet, witnesses were searching case law on google, and one

instance where the venire in the jury room were researching legal terms on

their Blackberries to better understand the judge's final instructions to

them. They sent a note back to the judge, delighting in their newfound

knowledge and interpretation of his instructions. The motion for mistrial

was granted!


These horror stories have led many trial counsel upon encountering social

media to conclude firmly they don't want any kind of relationship with it.

Alas however, social media is a contemporary cultural dynamic. Trial

counsel can no more renounce a relationship to information technology
than a fish can proclaim autonomy from the ocean it is swimming in.


As poet William Cullen Bryant wrote, "Cry not that the world changes -- if it

kept a stable, changeless state, it would indeed be cause to cry." The best

advice an attorney can receive is to not fear the change that culture brings,

but embrace it. In that embrace many attorneys find social media analytics

is a resource that protects of their clients' due process rights.


Social media itself is nothing more than a conversation. Trial counsel

knows that jury deliberations involve conversations. Social media analytics

says to the trial attorney, wouldn't it be nice to know what kind of

conversations your jurors are going to be having about your witnesses?

Your opening argument, summation? About the evidence you introduce?

About that expert witness you are going to call? Isn't that what lawyers

have always worked to discern way before the interactive social media we

know as web 2.0 was born? Today there are 900 million account holders

on Facebook. At last count there are over 300 million Tweets per day on

Twitter. That universe is being harnessed by social media analytics and
applied in litigation and criminal trials to advance the interests of all parties

whose lawyers choose to engage it.


Florida is a state that permits web cam coverage of court proceedings in

real time. At the bench's discretion, proceedings can be broadcast

throughout the internet; including for instance to offsite locations where

shadow jurors can be questioned about every aspect of what they observe

in the courtroom. What was the jury's reaction to your question on cross?

How was your demonstrative evidence received? And so on. Feedback

from social media researchers is sent back via email and texts to the

courtroom lawyer's table explaining what they found about everything

happening during trial in real time.


This opening up of the court to internet connectivity seems threatening to

those who prefer to disavow the law's relationship with the internet culture.

But it needn't. The availability of internet access during trial is not affecting

a case any differently than a law clerk running into the law library during

recess and researching case law, etc. Except that now, research has at its

disposal the world wide web as a resource for the protection of your client.
Here are a few examples I found of how social media research is being

used currently.



In West Virginia vs Dellinger, during voir dire, a prospective juror stated to

the defense counsel that she did not know the defendant. After the jury was

seated, a researcher working for the plaintiff found a Facebook message

the juror actually sent the defendant when she learned she would be on the

jury. Of course the plaintiff won a new trial.



There was a widely reported Michigan case of a defense attorney's

computer literate son who discovered an email message from a juror

saying, "gonna be fun to tell the defendant he's guilty." In that case the

offending juror was removed, fined, and an alternate took his place.



A Maryland murder trial had a witness dramatically change testimony after

a declared mistrial. As the second trial started it was learned that a social

media post had been found threatening one of the defense witnesses if she

didn't alter her testimony. The court followed state and federal rules of

evidence,      denied an objection based on hearsay,        affirmed
authentication of the Facebook post,        and allowed it to be admitted into

evidence to impeach the witness.



As we see, what social media research does is mine the internet

environment for relevant information for the sole purpose of protecting your

client's due process rights and a fair trial. Instead of being perceived as a

threat, it seems inevitable that social media research will grow through

demand from trial counsel because of the value it provides for their clients.

In the event, new relationships are being formed with this cultural dynamic

of our 21st century. Those who choose to divorce their professional careers

from the interactive internet will pay a cost, or more likely, their clients will.

As my girlfriend tells me, "it's all about relationships." A lawyer's

relationship to social media research, besides being inescapable, is a

strong net positive.



Finally, I want to briefly reference the Casey Anthony trial from over in

Orlando last year. There is so much to learn from this trial. Social media of

course went crazy! Over 600 press credentials were issued. Cable news

broadcast live feeds from the courtroom and Iphone apps delivered those

courtroom scenes to cell phones instantly. Utube videos replayed trial
testimony and evidence in endless loops on demand. Twitter and blogs

were overwhelmed with conversations.



The court of public opinion to this day believes the acquitted defendant is

guilty of murder. Today she has been forced into hiding for the protection of

her own life. She was polled as the most hated person in America in 2011,

thanks to social media. Even one of the jurors had to leave her home and

job out of fear of public retribution after the acquittal. This media spectacle

is one reason many trial counsel fear the power of the internet

environment. "What chance could a defendant have in an environment like

that one?"



Well as it turns out, the jury answered that question after only 11 hours of

deliberation. "Not guilty." So we have a neat little paradox of conclusions

generated by this case. The jury and the law on one side, vs the media and

the court of public opinion on the other. The fog created by the media

circus attending this trial still has not lifted. Part of the reason for that is it

has been almost 4 years since the accused was first arrested in July, 2008,

and to this day she has barely spoken a word publicly. She has been left to

be defined entirely by social media critics. As a journalist I am burdened by
the need to research stories. This story has irony, hidden truths and the

rather unique spectre of one person against the world.



In the marketplace of ideas, a journalist is trained to be uncomfortable

whenever there is a monopoly of opinion. There is no doubt that where this

trial was concerned, there was only 1 point of view being reported and

discussed. Florida’s Attorney General, Pam Bondi said on CBS news

before the trial even started, “The case is overwhelming. No one else in the

world could have done this except Casey Anthony.”



The case began with a remarkable intersection of the law and the social

media ocean that trial counsel {and judges} swim in. The original judge

assigned for the trial in the 9th circuit, Judge Stan Strickland, was removed

from the case, when it was discovered that he contributed a comment to an

anti defendant blog and subsequently called the blog administrator twice

privately and encouraged him to continue his opinionated work.



As this was unfolding, my writer’s antennae told me the story being written

in the public square was unbalanced. I went to the best qualified source I

could find to introduce balance for the narrative of the accused. I had the
privilege of writing an article for Harvard’s Nieman Foundation for

Journalism about the social media’s influence on the Casey Anthony trial.

My editor was the Washington Post’s special Watergate editor for

Woodward and Bernstein. His first question to me was, “What makes you

think you are right and everyone else is wrong?” A daunting question from

this respected reporter and editor. My answer was direct. I said, “I don’t

know where the story leads, but I know the presumption of innocence is

absent in the media’s court of public opinion.” He replied, “Let’s see your

sources.”



As I researched and wrote the story, the sources I developed slowly

became dispositive for the accused's innocence. The facts I uncovered are

surprising. Let me simplify what my research has confirmed. The accused

was asleep when her two-year-old daughter died at the hands of a third

person. She had no part in the death or disappearance of her daughter,

Caylee. The police arrested the wrong person. It was the prosecution that

caved to public pressure from social media demands for a trial and

someone to punish. But it was the jury who protected the due process

rights of an accused, with some help from her defense team.
Harvard professor Alan Dershowitz is fond of saying, " Well, if you want

justice, don't look to the criminal law system. That's not its job. Its job is not

to produce a just result. Its job is to produce a legally correct result."



As a journalist and as a citizen, I confess I look for justice within our courts

and in the outcomes from the trials they conduct. I began my remarks with

a nod to Justice Holmes and his admonition that culture and law should be

understood as interactive parts of the same cultural fabric. I also reflected

on the attorneys who out of fear choose to professionally distance

themselves from social media because of the kinds of spectacle that this

trial precipitated.



As a journalist, my takeaway is this: Our legal system met a very difficult

test in what Time magazine appropriately called, “The First Social Media

Trial of the Century.”



However this case stands as a benchmark of success for what Time

magazine called the 1st social media trial of the century. The Casey

Anthony trial and social media met in a confluence of the cultural dynamic

of our time and at the end of the day, the jury got it right. This judicial icon's
admonition to his profession prevailed. It was one of the finest moments for

our legal system in a generation.



I am reminded once more of the words of Holmes. He said in Patterson v

Colorado, “The theory of our system is that the conclusions to be reached

in a case will be induced only by evidence and argument in open court, and

not by any outside influence, whether of private talk or public print.”

(Patterson v. Colorado, 205 U.S. 454, 462 (1907) (Holmes, J.).




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