In reading about the massive case involving dozens of New York firefighters and police officers who are charged with defrauding the Social Security disability system by faking the nature of their own conditions in order to procure government benefits, key pieces of evidence collected by the Manhattan District Attorney’s Office include Facebook postings from the accused detailing activities that defy the basis for the disability claims – i.e., an officer riding a water scooter, one riding a motorcycle, and others working jobs as helicopter pilots and martial arts instructors. It reminded me of how, in our present culture, we are largely unable to abandon, or at least use caution with social media, no matter what the impact of our actions may be. The impulse to always live in the moment and let everyone in our universe (and beyond our universe) know what we are doing can have disastrous consequences, as these former officers and firefighters may soon find out.
We have certainly blogged before about the use of social media postings on Facebook, Twitter and the like as potential evidence in family law matters. It is incredible that, no matter what risks the use of such media can present in a divorce matter, whether the issues be that of custody, support, or something else, clients often seem either unwilling, or unable to help themselves. Before a party knows it, a motion has been filed and, attached to the litigant’s certification are Facebook postings that are being used against you as the other party. Maybe it was a picture of you driving that new Mercedes you just bought that shows you certainly do not need that alimony reduction you have filed for. Maybe it was an indication on your profile that you are working at ABC, Inc. when, in your divorce litigation, you claim to have been unemployed or a stay-at-home parent for several years. Maybe you posted a message to the other party that impacts upon your claim of domestic violence. It really can be any number of things and, yet, litigants cannot stop themselves.
As lawyers, we often argue that social media postings are inadmissible hearsay and should not be considered, especially when attached to a litigant’s certification on a motion. This is especially the case when the litigant attaching the post procured it from someone else third hand. In other words, litigants often think that blocking a spouse from viewing his or her profile will stop that spouse from procuring a questionable post from any one of the 500 other “friends” you may be connected to. Family judges, however, often find such evidence to be very compelling and may rely on it despite any evidentiary issues that may otherwise exist. Worse, as certifications in family matters are largely “he said, she said,” the other litigant has a chance to sway the judge with what may ultimately be complete and utter speculation! The picture of you holding a bottle of alcohol? Suddenly your former spouse accuses you of being an alcoholic. The posting by you about gun control or gun rights? The other party may accuse you of expressing reckless judgment. The picture of you standing with your new significant other and the children at issue in a custody dispute? Now suddenly you’re being accused of improperly allowing the new significant other into the lives of the children. Really, the possibilities are endless, but, incredibly, litigants are largely unable to control themselves. In the “no holds barred” world of family law where it often seems like anything goes, a greater degree of caution must be applied.
With these risks, why are parties still largely unable to stop themselves? A recent study at Harvard University revealed that posting information about ourselves online relates to the same part of the brain connected with a pleasure sensation – similar to eating food, receiving money, or, you guessed it, even having sex. “Self-disclosure”, as the linked article calls it, is considered by the study to be a similar form of rewarding behavior. It is for that reason why, no matter how many times I may tell a client not to post anything on Facebook during a matter, and no matter how innocuous it may seem, inevitably it will happen and, inevitably, I will only hear about it after the fact.
The lesson for litigants to be wary of social media is clear. Whether that lesson has been learned and will be followed, however, is another story. At this point, maybe social media has just become such an integral part of our lives that modifying how we use it is like asking someone to modify how he or she breathes. It certainly seems that way sometimes. Maybe we should just hand out old school flip phones to our clients during cases and confiscate smart phones, computers, and iPads until the case is over. Something tells me, though, that litigants will still find a way.
Robert Epstein is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or firstname.lastname@example.org.