TM vs. TMI


1. Trench Menu:

2. Too Much Information:

See the difference?

The usual trial lawyers’ courthouse greeting is, “what do you have going on today?”
We criminal-defense lawyers are gregarious social creatures; we like to hear what our colleagues are up to. If you’re a criminal-defense lawyer, being followed by any number of criminal-defense lawyers on Twitter, you can reasonably assume that what you have on your plate will be of interest to someone. If you’re wrong, they will mock you or just ignore you.

But remember: When you post something on Twitter you can never make it disappear. Your clients can read it. Worse, prosecutors can read it. Worst, your jurors can read it, and they can do a lot worse to you and your clients than just mock you and ignore you.

“Well,” the lawyer (I have not used his name in the text here because I don’t want the juror, googling the lawyer’s name, to happen upon this site and thus find the TMI tweet) might say, “I don’t identify the clients who are attracted to kids.” Or “But this is part of my orchestrated plan to lull the prosecutors into complacency.”

Consider:

Sometime in the near future, a lawyer picks a jury on a sex-assault-of-a-child case. The accused won’t take the stand to testify. The allegations are vague enough that no alibi will avail. He has no living relatives, and no friends who have stuck by him. It falls to the lawyer to tell the jury the client’s story in jury selection, in opening, in cross, and in closing: he didn’t do it and in fact is in no way attracted to children.

A juror, curious about the lawyer, does an internet search, finds the lawyer’s Twitter feed, and sees that the lawyer has a client who is charged with sexual assault and is attracted to kids. The lawyer is handling lots of sexual-assault cases, but how does the juror know that? The lawyer is not writing about this client, but how does the juror know that? He jumps to the wrong conclusion and decides that the lawyer is lying to him.

Thanks to that decision, the innocent client is convicted; for want of sound judgment on Twitter, a life is lost.


9 responses to “TM vs. TMI”

  1. This post is fine as far as it goes, but only scratches the surface of the TMI problem and doesn’t address the self-promotion/marketing problem at all.

    On the TMI end, these twits, for example, let a prosecutor know that defense counsel won’t be ready for trial/hearing that day because of other obligations, so a prosecutor can announce readiness knowing this and stop the speedy trial clock from running, knowing that defense counsel is busy with another case. Defendant screwed.

    Twits are public. It is not the same as chatting privately with a pal in the hallway. It’s giving up information to the prosecution, judges, jurors, other clients, that can harm a defendant in ways you will never know and can never anticipate. We have no clue what bit of seemingly inocuous information will matter to someone else, or have an impact on a case or client. No CDL has the right to give up information that can harm his client so that he can have fun chatting with his pals.

    And on the marketing side, some lawyers will lie through their teeth to convey the appearance of being busy with serious cases as part of a scheme to suggest they are capable of handling cases well beyond the skills or experience. This opens up a whole new opportunity for lawyers to deceive and self-promote, which will cause a downward spiral amongst those lawyers inclined to do so and those who need the business and see this as a chance to puff themselves. And we both know there are plenty of self-promoters in our ranks.

    Norm has written a post today as well, explaining that he likes to talk about himself and likes to hear what others are doing. While I certainly want Norm, and any other lawyer inclined to do this, to be happy, let them find a way to be happy without doing unanticipated harm in the process. Our job is to put our clients’ welfare ahead of our personal happiness, and we do not take risks with our clients’ lives because the internet has provided a new game for us to have fun.

  2. Every day, people give away confidential information on social media that could potentially put themselves, their families, and their businesses at risk. It’s no surprise that lawyers do the same as the rest of the population, and that’s very unfortunate for their clients who are depending on good representation from someone who holds their confidence.

    Nothing that is posted on the internet ever truly goes away. The second it shows up on another computer screen, it has the potential to be retweeted, commented on, forwarded, facebooked, screenhot, emailed… Deleting the original doesn’t change anything.

    Everyone knows, or has the ability to find out, everything about everyone, given the technology that is in our hands. Too many people use it without a thought of what might happen next.

    I’ve said it before, and it bears repeating: Big Brother is here. Big Brother is all of us.

  3. Oh, my. The state believes three people it accused of child molestation are attracted to kids. What was I thinking?

    As you apparently believe that I have betrayed my obligation to the clients, I will print your post and attachments and submit it to the statewide grievance committee here in Connecticut for their opinion. It is difficult for me to believe that an experienced litigator would reach this conclusion. Indeed, I thank you for the opportunity to litigated this claim. I encourage you to file a complaint as well:

    Statewide Grievance Committee
    287 Main Street
    East Hartford, CT 06118-1885

    In other words, Mark, and Scott, I am encouraging you to put your energy into perfecting claims that have a certain, no pun intended, sex appeal, but are devoid of merit.

    I look forward to your briefs.

    • For all I know, these three clients gave you permission to announce to the world that they were “all attracted to kids.” You haven’t IDed the clients; for all I know they don’t even exist.

      But just because it’s not a DR violation doesn’t mean it’s not a very bad idea.

      If you think it was a good idea, you will keep doing it. I’m betting that you don’t and you won’t; unless I’m wrong, save your bluster for Koehler.

      For I am unimpressed.

  4. How on earth can twittering about one’s ongoing case ever benefit a client? I’d love to hear any story about how Twitter was the pivotal tool in gaining a positive outcome.

    Want to comment on another case you read-about online? Go for it.

    Want to talk about lessons learned from a case that already had a public trial? Have at it (but only talk about the public stuff).

    Your current pending cases? Have a bit more respect for your client and be mindful that silence is a great weapon we have at our disposal against the prosecution.

    Here is my only (and perpetual) trench menu: Doing law stuff and other miscellaneous activities.

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