Last week, I had the pleasure of attending the 27th Annual Nevada Family Law Conference up in Ely. It was a wonderful opportunity to spend some time learning alongside colleagues and judges from across our state, and, over the coming weeks and months, I look forward to sharing some of the insights I gained there. One of the sessions I attended in Ely was about the use of technology in the courtroom. The overriding message of that session was that technology is evolving at an incredibly rapid pace throughout our society, and that those legal practitioners who fail to keep up with technological advances do so at their own peril. It got me thinking about the many ways that technology has played a role in my own clients’ family court cases. This week, I want to talk about some technological pitfalls that family court litigants should seek to avoid, as well as some ways that technology can work to your benefit at trial.
We live, arguably, in an age of over-sharing. Thanks to the ubiquity of social media platforms, many of us are in the habit of “live-blogging” our experiences – posting photos, status updates, and location check-ins on a regular basis, sometimes several times a day. Common sense should tell you that such frequent use of social media can and does create massive amounts of data about people, and that such data can be used in a variety of ways. However, as someone once said, common sense is not so common anymore. I am often amazed at how little most folks really think about what the implications of all that data might be, especially in the context of a family law case.
Consider these scenarios: (1) A father has submitted documents to the court in his custody case requesting that the children live with him on the weekends, because he is off work those days and wants to dedicate his free time to spending meaningful time with the kids. At the evidentiary hearing, the mother’s attorney introduces a series of Facebook posts that show that, on almost every Saturday night for the last several months, the father has been out at various nightclubs, consuming large quantities of alcohol, cavorting with all sorts of new “friends” who are half his age. Is the judge in this hypothetical case likely to send the children to live with their father on the weekends? (2) A mother has stated in her divorce and custody case that she is barely scraping by, living alone in a modest apartment, and focusing all her energies on protecting the children from the unpleasantness of the divorce process. The mother also suggests she has always been a faithful companion to the father and was “blindsided” by his divorce filing. At the evidentiary hearing, evidence is introduced from a “find my phone” app that places the mother at a particular residential address several nights a week. A series of satellite photos from Google Maps is then produced, which show that this particular residential address is a lavish mansion in a gated golf course community with a magazine-worthy swimming pool in the back yard. Finally, correspondence pulled from a dating website (one that advertises itself as being for “cheaters”, perhaps) is revealed, wherein the court learns that the mansion is owned by the mother’s paramour of the last three years. Said paramour recently invited the mother to move in with him after she complained incessantly in text messages of wanting to be “rid of” the burdens of caring for her children. Is the judge in this hypothetical case likely to believe anything the mother says? To feel sorry for her?
These scenarios may seem far-fetched, but, technologically speaking, they are absolutely within the realm of possibility. And, I can tell you candidly that, realistically speaking, these scenarios are not that different from the facts of actual family court cases with which I have been involved. I have personally used Facebook posts to help my own clients in the courtroom, and I have similarly had to defend clients against negative inferences that an opposing attorney gleaned from social media and other technology platforms. The ready availability of data about most family court litigants has made it possible for family attorneys to do a great deal of private-investigator work, right from our desktop computers or even our (or our clients’) mobile devices. That said, I have also used social media posts to my own clients’ advantage. A Facebook wall filled with pictures of my client with his or her smiling children, spending fun and meaningful time together, can be quite compelling in a custody case.
We have all been warned, and rightly so, about the risks to our privacy that social media outlets can pose. If you are in the midst of a family court case, or even if you anticipate being involved in such a case in the future, I suggest using an especially high level of caution when it comes to social media use. Stop and ask yourself: do I want the judge to see this? If the answer is even a close call, don’t post it. Be aware of (and manage) your friends’ ability to “tag” you in posts; do not accept friendship invitations from anyone you do not really know; and, perhaps most importantly, never assume that anything you say or reveal online will truly stay private. Still, don’t forget that, at trial, social media posts can be used as both a sword and a shield; if you truly are living the life you want the judge to see, those posts can be powerful evidence in your favor.
At SmartLaw, we keep up with all the latest technology trends, so that our family law clients are well positioned to use the available data – whether offensively or defensively – to their advantage at trial. It’s not just a science-fiction television slogan: the truth really is out there. Don’t let that truth surprise you – or worse, destroy your case – at family court. We can help. Call us today to schedule your consultation.