Do-It-Yourself Social Media in Litigation a Bad Idea

There’s a new and troubling trend among high-profile defendants in litigation. Increasingly, they’re turning to social media to mount a do-it-yourself legal defense.

Bad idea.

From CEOs and hedge fund managers to athletes, rappers and local business owners, more and more litigants intent on salvaging their reputations are using Facebook, Twitter, YouTube and other social media platforms to argue their innocence and create sympathetic images of themselves. And they’re doing so at great risk to their cases.

Two days after pharmaceutical executive Martin Shkreli was arraigned on federal securities fraud charges, he wrote on Twitter: “I am confident I will prevail.” He has since followed that statement with an ongoing dialogue with his Twitter followers and posted videos of himself playing guitar.

But in his attempt to prevail in the Court of Public Opinion, Shkreli, who is best-known for raising the price of a drug by 5,000 percent to profit from AIDs patients, is also taunting regulators and handing unflattering evidence to federal prosecutors.

When the Securities and Exchange Commission charged private equity executive Lynn Tilton with defrauding investors last year, she used Twitter to attack the strategy of federal prosecutors and posted a video denying any wrongdoing. Her efforts have invited public scorn and stiffened the resolve of her pursuers at the SEC.

Likewise, billionaire Mark Cuban, Bitcoin proponent Charlie Shrem and CrossFit entrepreneur Joshua Newman have all defended themselves on social media with unfiltered and aggressive declarations in the middle of pending litigation and regulatory matters.

Defense lawyers argue that using social media without regard to a legal strategy is very risky. They caution that undisciplined tweets, videos or Facebook posts can be used as evidence against their clients at trial or sentencing.

“Trying to argue your position in a legal dispute through social media without the advice of experts is flirting with disaster,” advises Adam Fox, managing partner of the Los Angeles office of global law firm Squire Patton Boggs. “You can’t allow your ego to get in the way of your legal strategy.”

Litigants who cannot refrain from communicating on social media are well advised to make sure their online utterances are part of a comprehensive litigation strategy approved by their attorneys. Better still, they should work with litigation communications professionals who can craft or edit effective social media statements that remain authentic without blasting a hole in their legal position or damaging their dignity.

Nobody’s arguing that we go back to the day’s of “No Comment,” where litigants damned themselves with silence. But you’ve been warned: blabbing indiscriminately on social media during litigation can be even worse.

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