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Winning with Social Media: A Desktop Guide for Lawyers Using Social Media in Litigation and Trial

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ISBN: 9781601565679
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ISBN: 9781601565686
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Litigation is about winning. It's not like a game of horseshoes, where coming close is good enough. Placing second is not something that gets and keeps clients. Now flash forward to the social media era of Facebook, Twitter, Instagram, Snapchat—and the list could go on and on, with new sites springing up and gaining traction all the time. Social media—once the stomping grounds of a youthful, tech-savvy generation—is a phenomenon with an incredible impact in the legal arena. The oversharing that happens on social networking sites can make or break a case—and what's more, the online landscape is ever changing, ever morphing and evolving, nearly at the lightning speed of technology itself.

It may sound like a brave new world out there (and it is), but the good news is that you can quickly get up to speed and have a desktop guide at your fingertips. And, once you become comfortable with social media, you're going to be pleasantly surprised by how much helpful evidence can be found on social networking sites. That's where Winning with Social Media comes in. In this new book by attorney Michelle Sherman, you'll discover how this modern form of evidence plays a key role in cases ranging from divorce and child custody to wrongful termination, from narcotics trafficking to invasion of privacy, from breach of contract to intellectual property, from DUI to professional malpractice. You'll learn how to:

      •  conduct informal discovery for getting social media discovery from the opposition
      •  execute personal service through social media when all else fails
      •  lay a rock-solid foundation to get online posts admitted into evidence
      •  overcome objections in discovery and at trial
      •  authenticate "ownership" of social media accounts and the incriminating posts made to them
      •  keep your clients from sinking their case through "loose lips" on social media
      •  use and monitor social media posts— not just from the parties, but witnesses, jurors, and even the judge— from start to finish in your case

What you won't come away with, Sherman advises, is any reassurance that you can ignore social media in your litigation matters. Lawyers who do or who dismiss its relevance do so at their clients' peril. In the twenty-first century, dealing with social media evidence is a crucial part of your discovery plan and trial preparation, and Winning with Social Media will help you meet that challenge.

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Table of Contents

PREFACE 

PART ONE:  BUILDING YOUR CASE WITH SOCIAL MEDIA EVIDENCE

CHAPTER ONE:  SOCIAL MEDIA BASICS

1.1   Social Media for the Novice
1.2   Privacy Concerns

CHAPTER TWO:  PRE-LITIGATION STEPS
2.1    Talking to Clients about Social Media
2.2    Dealing with "Doe" Defendants

CHAPTER THREE:  STRETCHING THE BOUNDARIES FOR SERVICE OF A COMPLAINT AND PERSONAL JURISDICTION
3.1   Service of Summons
3.2   Specific Personal Jurisdiction and Defendants with "Digital Footprints"

CHAPTER FOUR:  DISCOVERY, ETHICS, AND MOTIONS TO COMPEL
4.1   Step One: Informal Discovery
4.2   Step Two: The Litigation Hold Letter
4.3   Step Three: Formal Discovery Requests
4.4   Motions to Compel
4.5   Motion for Spoliation Sanctions

CHAPTER FIVE:  EXPERTS AND THEIR DIGITAL FOOTPRINT
5.1   Social Media Due Diligence

PART TWO:  USING SOCIAL MEDIA AND INTERNET EVIDENCE AT TRIAL

CHAPTER SIX:  MONITORING SOCIAL MEDIA AT TRIAL
6.1   Trial Counsel
6.2   Judges
6.3   "Big Picture" Concerns

CHAPTER SEVEN:  SELECTING AND MONITORING JURORS
7.1   Jury Selection
7.2   Monitoring Jurors through Social Media
7.3   Bright-Line Rules to Remember

CHAPTER EIGHT:  LAYING FOUNDATIONS
8.1   Hurdle One: What Is Relevant Evidence?
8.2   Hurdle Two: What Does It Mean to Authenticate Evidence?
8.3   Hurdle Three: Is the Evidence Admissible as Either Not Hearsay or under Some Exception to the Hearsay Rule?

CHAPTER NINE:  AUTHENTICATION
9.1   The Hurdle of Drawing a Straight Line between Social Media and the Witness
9.2   Court Decisions on Authentication Objections
9.3   Tips for Laying an Adequate Foundation
9.4   Tips for Foundation Objections

CHAPTER TEN:  ADMISSIBILITY-OVERCOMING HEARSAY OBJECTIONS
10.1   Hearsay Rules Applying to Social Media Evidence
10.2   Residual Hearsay Exception
10.3   Red Flags that Should Draw Objections
10.4   Plan Ahead-Whether You Are Making or Responding to Hearsay Objections

SUBJECT INDEX