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  • Lew L. Humiston

The importance of restraint in professional and personal communications

Updated: May 2

Why every business and personal communication needs to be authored with the idea that it's going to be featured in potential litigation.


Investigators are minors. We go deep and wide in our effort to collect useful information that benefits our clients' legal goals.


In the past, shoe-leather investigation necessitated direct contact with court clerks, neighbors, and opposing parties. It required a substantial investment of time and physical engagement on behalf of our clients. The investigations of today are conducted primarily, or at least initially, by lacing up our digital foot-ware and trolling the ever-developing minefield of social media.


You've probably heard the legal maxim "author everything like it's going to be used in a deposition." And that's truer now than it's ever been. And in the past, managing communication from a single or dual stream was a more natural mandate to observe. But as our bandwidth and access to the many varied, social media platforms have expanded, so too has the breadth of our potential liability.


It isn't just emails, texts, business memos, or meeting notes. Now it's Facebook, Instagram, WeChat, Twitter, Linkedin, etc. By the time I've finished this sentence, there will likely be another social media platform being launched as the "next big thing." And make no mistake: The endless sharing, tweeting, photo-bombing, and video uploading can be massive, indeed.

Pandora's Box effect


The great and unexpected troubles the Greeks mythologized with Pandora, are now the very real and devastating troubles facing litigants with open keyboards, and a seemingly endless appetite for stream of consciousness blathering that has the potential to become very public, despite false assumptions to the contrary.


If you write it, they will use it


This isn't the field of dreams, so much as the stuff nightmares are made of. Today, you have to be mindful of every word, image, or video you put out there. That cute selfie you took in Las Vegas with trace amounts of cocaine visible under your left nostril, may end up as the primary exhibit in a motion to amend your parenting plan. You thought Vegas and the coke came at a high price? Wait 'till you get the bill for all the supervised visitation the commissioner is going to order. Or the cost for the out-patient treatment you'll be directed to engage with, to say nothing of the impact on the relationship with your child. Now, the only contact with your child that's available to you might not exist anywhere else, but in the very virtual world, you used to tear-down your life. One-click-big-impact!


That Facebook rant about your boss or coworker gets "shared" and becomes viral. For a moment, you're the next social media star. In the next breath, you're unemployed or sued for defamation.


In case your wondering, I'm not waxing-poetic here. These are real-world examples of actual occurrences clients faced after "sharing" their exciting lives with the social media platform of their choosing.


There is no legal right to privacy in a social media post


Every-now-and-again, users will circulate a post that originated on the Facebook platform announcing that everything they post is somehow copyright protected, and their intellectual property. It isn't. The click-wrap-agreements employed by all social media platforms provide that ownership of the content published through their portals belongs to them--not you. And it's all potentially usable as discovery-fodder by an opposing party.


Furthermore, once you put something out there--an assertion of privilege is almost certainly going to be denounced by any trier of fact. Those "di** pics" you sent to your paramour, that were inadvertently accessed by your teenager when you let them use your cellular phone, are now in play by your ex-partner in any subsequent family law actions. That Zoom meeting side-chat where you called the boss a "frog face." No, it's not private. And yea, that moment of pique can be used as grounds for dismissal for cause.

Sharing isn't caring

That image you shared of the "criminal" who lifted a package from a neighbor's porch, can come back to haunt you. It turns out, the "criminal" was the delivery person retrieving the package she misdelivered, to deliver it to the proper recipient. You've just branded your neighborhood delivery driver as criminal "mastermind," and whoops, it went viral. Mindless sharing can do much more than simply make you look foolish; it can land you in the starring role as defendant in a lawsuit. Mindless clicking and sharing costs.

In an ideal world, we'd measure every word

Ideally, you'd give as much consideration to the words you type as the words you speak. But we don't live in an ideal world or ideal times. We're occupying the world of instant fame, immediate commentary, and filter-less flabbery. It's time to tone-up those thoughtful muscles and develop a six-pack lip-gate. Remember: loose lips sink ships! Or more relevant to present circumstances, clickety-clack can really bite back. Moderate those posts, videos, and big thoughts with the idea that whatever you voice and, however you voice it, that material can be blown up to exhibit size and shared with a jury. Keep it tight. Keep it professional. And really, keep it to yourself. By: Lew L. Humiston 04/25/20

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