Tag Archives: social media

Beware Of The E-mail Hydra: How To Increase Productivity By Decreasing Responsiveness

Some people know how to ruin a good thing.

It was the first person to use a cell phone in the movie theatre or get too drunk at a work function. Now we have to watch advertisements about how “silence is golden” and drink from cash bars at office parties.

Not to mention, America used to be entertained by Donald Trump’s tweets; now the novelty is over and opening Twitter feels more and more like opening Pandora’s Box.

“It takes 20 years to build a reputation and five minutes to ruin it. If you think about that, you’ll do things differently,” Warren Buffett once said. In business, one failure, one event, or one person is all it takes to ruin a good thing.

Unfortunately, the same applies to the Internet (and politics—but we won’t go there today).

Once considered the best thing to happen to business, the World Wide Web is opening a world wide can of worms. From Facebook browsing during office hours to computer viruses, the Internet has put workplace efficiency in jeopardy.

With marketers trolling for bits, cookies, and IP addresses, say goodbye to your privacy. With sites like Wikipedia, forget finding reliable information online. With the immediacy of email, proper etiquette has been replaced by emoticons.

“As our inboxes have become more demanding, we have all become less responsive — because we get so many messages it’s hard to keep up. But the harder it is to keep up, the more messages (‘I just thought I’d send another email asking if you got my first two emails’) we send,” writes Sarah Green for the Harvard business Review Blog.

“The problem with ‘responsiveness’ is that email then becomes like a hydra—cut off one head (answer one email) and you spawn nine more,” continues Ms. Green. “The more responsive you are, the more email you receive, and the more responsive you need to be.”

Sometimes, increasing your productivity means being less responsive to e-mail. Put an end this inefficient desire to be “responsive” by following some simple steps here.

Or, you can tap into new technology. Take, for example, Yesware.

Yesware is an oldie but goodie ad-on to Google Mail that transforms what many have ruined in electronic communication—informal or inappropriate greetings, responsiveness, and excessive urgency—into a good thing once again.

Geared toward salesmen, Yesware is an ideal email productivity app for lawyers. With Yesware, law firm professionals can:

  • Get alerts each time someone opens an email or clicks on a link
  • Know exactly when to follow up with your clients and prospects
  • Know where in the world your message is being viewed
  • View the device that prospects are using to open your email

In addition, the Yesware app is customizable. Restore formal language in business communication with Yesware’s email templates:

  • Choose your best templates by seeing which ones your customers reply to most
  • Incorporate links and rich text to send great looking messages at the click of a button—every time
  • Use [brackets] to indicate custom fields to make your templates even faster and easier to use

Finally, seize business opportunities with Yesware’s analytics functions:

  • Know exactly who is best to follow up with by using our personal tracking reports and gauge your email opens for the last 30 days
  • See where in the world people open your emails from inside your inbox
  • Find out if your message is reaching top decision makers
  • Prioritize your email prospecting with subject filters and email activity sorting

Forbes says about the app, “If You Want To Be Awesome At Emails, Add Yesware To Your Gmail Today.”

But, whether it’s yesware or other productivity solutions, be carefuly what you say. And, more importantly, how fast you say it.

Taking more time to write messages (or tweets) may save your productivity and, in the end, your credibility.

-WB

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Uber’s 3 PR Tips For Law Firms: #DeleteUber & Why “Trending” Isn’t Always A Good Thing

Yesterday was a PR nightmare for Uber (and a political one for Republicans).

New York City’s yellow cabs were showing solidarity with opponents to Trump’s executive order targeting people from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.

But, just as the drivers licensed from the Taxi & Limousine Commission halted rides to John F. Kennedy airport, Uber decided to lower its fees for commuters.

It’s hard to say if this was just poor timing or a creep on cabby market share, but Uber’s decision to continue to pick up passengers at JFK felt immediate backlash.

Shortly thereafter, on Twitter, #DeleteUber started to trend.

New Yorkers were supportive of the taxi drivers’ decision to host a one-hour strike in protest of the policy. After all, many of their employees are immigrants from the nations being targeted by the travel ban; and, many New Yorkers are, too.

“Honestly, it was really touching to see how many people stood up for our strike,” alliance director Bhrairavi Desai said to the NY Daily News.

“Uber is a Wall Street darling. We’ve never had illusions that it operates on Main Street.”

Then, Lyft—a direct Uber competitor—announced it would donate $1 million to the ACLU, which commanded the fight to free detainees (via CNBC). Eventually, Uber tried to set the record straight about not wanting to break the stike. The company even pledged $3 million toward a legal defense fund to cover legal expenses associated with the ban. Nevertheless, damage was done to Uber’s reputation. Some might call their actions, too little too late.

Don’t let #DeleteUber happen to you. Here are three PR pitfalls your law firm should watch out for.

  1. Pretending Your Firm Is Immune to Client Feedback. Your firm is in the services game whether you like it or not.

Law firms, like taxis, are accountable to clients. Ultimately, firms offer legal services—“services” being the operative word. In service industries, it is crucial to address customers directly. Communicate with them via Twitter and social media. Be sensitive to their whims.

Find out through surveys or direct communication what type of action, pay schedule, or social justice a client may want. And, even when it costs you money, do it. Paying up front to accommodate a single, needy client will result in client referrals and positive client feedback. Damage done by a negative review can lead to an irreversible negative reputation.

  1. Believing More Publicity Is Good Publicity. You’re not a celebrity or socialite. IN law, publicity is not always good publicity.

Uber was already facing a dubious reputation in New York. Now, it might have given market share over to its chief rival (and litigant). Sometimes law firms want to stay under the radar when it comes to cases—even ones with successful outcomes.

Carefully curate your public image. A groundswell of negative public attention can quickly take over thanks to social media.

  1. Employing Hands-off PR Strategies. PR agencies should not shoulder all the responsibility and work involved in creating a positive image for your firm. Partners and associates must all chip in when it comes to managing the PR poker game.

Uber should have immediately ceased operations at JFK. It should have considered donating money to a legal fund directly benefiting employees of the Taxi & Limousine Commission who went on strike.

Employing third-party consultants does not exempt attorneys from speaking to the press or representing their firm. A PR person is not a substitute for a well-spoken (and sometimes apologetic) law partner.

Richard Levick, President of Levick Strategy Communications, writes of law firm PR strategy:

“Reporters are like stray cats –if you don’t feed them, they go to someone else’s door. Call them back first, even if it is to say that you can’t say anything. Reporters remember who calls them and who doesn’t. Not returning the journalist’s call today, no matter what the reason, guarantees that you won’t get the call when you do want to be in the paper.”

Need more help crafting the right message to your employees and clients? Check out the Center for Competitive Management’s Legal Services training webinars here.

Because in today’s powerful social media world, “trending”—like #DeleteUber—isn’t always a good thing.

-WB

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How Law Firm’s Make Use Of Introverted Employees & Social Media In 2017

The social media age. Upside, your law firm takes advantage of the windfall of electronic recommendations and attracting new clients via LinkedIn, its website, Twitter, Facebook, etc. Downside, somebody has to keep updating your tweets.

Social media has empowered businesses and consumers alike. Individuals have never held so much influence in changing the world with just one click of a button. And, at the same time, businesses are empowered to advertise their products and services to a market much larger than before.

At first, law firms were a bit slow to take advantage of digital days. Not anymore. Now it’s necessary to task young associates with managing your Facebook page, Twitter account, and—hopefully—blog posts, or risk your bottom line by falling behind.

Here’s how your firm gets noticed:

  1. Publish your posts on media aggregators. 

Upside: Websites like Reddit, Shoutwire, and Digg allow individuals to submit links to websites, blog posts, or any Internet-based page. The community of readers then votes up (or down) the link based on a review of its content. Create flashy titles and you’ll likely see in a flash the rise of your readership.

Downside: Comments by readers can be harsh. The anonymity of the Internet allows people to wriste down criticisms (NSFW) that may end up permanently cached on the World Wide Web.

  1. Add website sharing buttons.

Upside: Your firm’s website should have links to all of your social media accounts, as well as ways to share your posts. Programs like “Click to Tweet” make this easy.

Downside: Your firm may need a small amount of Internet savvy to create buttons on your website and restore broken links.

  1. Create interesting content.

Upside: Remember to write thoughtful arguments accompanied with eye-catching photos. There’s so much competition already when it comes to online content, your firm’s additions must stand out.

Downside: Yes, this requires a little more time and thought to write captivating posts and tweets. Consumers would rather see the “Yeti Seen Prowling the Streets Near Boston” than your tips about hiring Of Counsel at your company.

  1. Do your research.

Upside: If you know what time your readers are logging on then you’ll know the best time to publish your posts. Maybe you’re getting a lot of hits first thing in the morning. People are remiss to start work at 8am and decide to read legal news or browse the web. With this knowledge, you can now set your social media to publish at certain times to target your audience.

Downside: Due diligence on your casework is no longer enough. Time to do due diligence on your business development, too.

  1. Crossover multiple social media platforms.

Upside: Happy you finally mastered the art of blogging for your firm? Time to summarize that blog post on your LinkedIn and Facebook page and compile a 140-character hook for your Twitter account. Don’t be afraid to repeat the same ideas on different mediums.

Downside: Now you’ll have to memorize more usernames and passwords. More social media means more potential backlash.

Speaking of backlash, protect your firm from recent changes in the Federal Rules of Civil Procedure (FRCP) governing e-discovery, which covers the legal use of social media e-discovery in cases.

Throughout 2016, the Federal Rules of Civil Procedure (FRCP) amended the scope of discovery, timing of discovery requests and availability of sanctions for data preservation mishaps, and motivated judges to issue notable e-discovery opinions and interpreted new FRCP provisions.

Now, in 2017, in addition to keeping your social media prowess up-to-date, your firm must swift through e-discovery using up-to-date procedures.

There’s a lot to keep track of in the social media and electronic information world, and this will only get more difficult when it comes to training and managing employees—not to mention the fact that with the press of a button, the same information you created at your fingertips is lost at them, as well.

What does this mean for you? There’s still time to push social media at your law firm within the 2017 FRCP compliance.

For example, Michele C.S. Lange for Above The Law blog advises, look for intent when dealing with deleted documents.

“With an average litigation matter often involving thousands (or even millions) of documents, it is no secret that data preservation is one of the thorniest issues in ediscovery. How does an organization and its counsel ensure that all relevant documents are protected? Changes to Rule 37(e) were designed to reset the preservation duty by allowing courts to use good faith, intent and reasonableness when determining if a party should be sanctioned for destroying digital evidence. However, ‘proper preservation’ is still a blurry line, often dependent upon a myriad of case-specific facts, and in 2016 many judges delved into whether a party’s conduct was sufficient under Rule 37(e) to levy sanctions. There will be a steady stream of cases in 2017 addressing reasonable steps to preserve, intent to deprive another party of relevant data and the inherent power of the court to administer sanctions when data is lost.”

The Center for Competitive Management (C4CM) offers myriad webinars and services to help you navigate social media and technology at your law firm.

C4CM will also help you with law firm management. It’s difficult to give assignments to associates who are proven introverts. Learn more about how to structure meetings and trainings to encourage participation by introvers with C4CM’s live webinar. Sign up before January 25, 2017, and attend, “Introverts in the Workplace: Harnessing the Untapped Power of the Introvert,” for free on Tuesday, January 24th, 2017, from 2pm to 3pm EDT.

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Twitter Nightmares: Mitigating Social Media Risk & Compliance For Employers

This week, Bloomberg reported that Snapchat’s daily active users, at 150 million, had surpassed that of Twitter. Twitter doesn’t disclose its number of daily active users (which is estimated at around 140 million daily active users by external surveyors), so it has yet to confirm the metric. Nevertheless, major business headlines seem concerned; Forbes wrote today, “Is Snapchat Threatening Twitter?”

And, it’s enough for litigators to realize that Twitter, with a whopping 310 million monthly users, like other social media sites, makes up an important market.

From safety to theft to libel, social media is hotbed of lawsuits.

Just today it was announced that social media mogul Mark Zuckerberg’s Twitter and Pinterest pages were compromised after a hacker or hacking group named “OurMine Team” temporarily pirated Facebook founder Mark Zuckerberg’s accounts.

Zuckerberg, who hasn’t tweeted since 2012, apparently sent a tweet today reading, “Hey, [Mark Zuckerberg], You were in [the] Linkedin Database with the password ‘dadada’! DM for proof.”

LinkedIn settled a consolidated class action lawsuit stemming from a June 2012 data breach that compromised 6.5 million hashed passwords in 2014, for which we can only assume Zuckerberg was victim. It has since been required to implement data security protocols using the industry standard encryption methods of salting and hashing for at least five years.

This is not the first time Twitter has made the news (or the docket).

Back in 2009, Amanda Bonnen took part in the first ever twitter-related lawsuit. In it, Horizon Realty Group contended that Bonnen defamed Horizon by tweeting to her friends about the apartment she rented from them, “You should just come anyway. Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it’s ok.” Horizon alleged this was libel and demanded at least $50,000. Eventually Horizon’s suit was dismissed on the grounds the tweet was too vague to meet the definition of libel.

Since then, tweets have made up a major concern for companies. Reputation and revenue are on the line in 40 characters or less.

In a similar incident, Chipotle was recently sued for firing employee, James Kenney. The 38-year-old war veteran sent a negative comment about the restaurant via Twitter. According to Philadelphia Magazine, Kennedy’s tweet read, “@ChipotleTweets, nothing is free, only cheap #labor. Crew members make only $8.50hr how much is that steak bowl really?”

Unfortunately for the food chain, U.S. Labor Laws protect employees’ rights to free speech, and a Philadelphia judge ruled that Chipotle needed to rehire Kennedy—with back pay.

Employees’ social media activities frequently play an important role in workplace investigations. Yet, when investigating harassment, discrimination or other employee-related claims employers must be aware of specific laws that restrict employers’ requests (and access to) an employee’s social media accounts and posts.

Fifteen states have passed laws that limit the employer’s authority over employees’ social media accounts, and many more are not far behind. No matter how serious the investigation, one peek at an employee’s social media account could become a costly, non-compliance nightmare.

If your firm doesn’t already know best practice solutions for conducting workplace investigations legally and effectively, now is the time.

Attend the Center for Competitive Management’s audio conference, “Workplace Investigations: Using Social Media Legally & Effectively while Limiting Risk” on Tuesday, June 7, 2016 from 2:00 PM to 3:15 PM Eastern and learn: 

  • Key restrictions under state social media laws
  • Legal pitfalls to avoid when conducting discrimination investigations in the workplace
  • How to conduct compliant discrimination/harassment/threat/defamation investigations
  • When you can and cannot ask for an employee’s passwords
  • What employee conduct the National Labor Relations Board (NLRB) protects and the finer points of the guidelines it has provided.
  • Employee privacy dangers and what defines a ‘Reasonable Expectation of Privacy’
  • Discussion of cases where social media was misused
  • Broader implications for using social media in applicant screening/hiring
  • What multi-state employers must consider when drafting social media policies for investigations
  • Steps to take right away to be sure your current social media and investigation practices and policies are compliant 

And afterward, go ahead and tweet about it. You’re covered.

 

-WB

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Blogging Backlash & Lessons In What (Not) To Post

Recently, the community blog PLOS Biologue removed a blog post by two journalists Charles Seife and Paul Thacker that criticized the lack of transparency by scientists.

The article can still be read in a cached form here, in which it states:

“In the wake of several embarrassing scientific debacles where financial conflicts played a prominent role — the death of Jesse Gelsinger,[i] the delayed decision to pull Vioxx and Bextra from the U.S. market,[ii] and the misconduct of Andrew Wakefield,[iii] to name a few — scientists, clinicians, publishers, regulators, and journalists began to beat a steady drumbeat to march research toward transparency.”

The post goes on to discuss various instances where e-mails from scientists have revealed the extent to which industry experts control the scientific literature to promote their own products and private gain.

At the end, the journalists conclude, “In short, those working to improve public welfare should oppose attempts to embolden government entities to withhold public information, thus threatening public health and the public trust in science.”

PLOS Biologue pulled the post after severe backlash by its readers, arguing the post was “not consistent with at least the spirit and intent of our community guidelines.”

Keith Kloor, author of the Nature news article mentioned in the retracted post, told Ivan Oransky of Retraction Watch that he disagreed with the decision to remove the article, stating:

“As much I think the PLOS post is deeply flawed and erroneous, it bothers me that it was retracted. 1) The official explanation is really vague. Not very transparent! 2) I have to wonder if there was intense pressure brought to bear from scientists…I find myself in the odd position of defending the flawed PLOS post from these presumed pressures, in part because I’ve been the subject of similar pressure campaigns. (Of course, I’m only assuming pressure was brought to bear. I have no idea if this was actually the case.)”

This instance provides law firms two important lessons about blogging. First, blogging is not easy. Readers—even online—create a discerning audience who feel free to openly and harshly criticize authors.

Second, blogging—while crucial to the survival of a company’s marketing strategy today—is as dangerous as it is beneficial. It is reported that the number of blogs published by Am Law 200 law firms has grown twelvefold in the last seven years, according to Above The Law (ATL), quoting the Am Law 200 Blog Benchmark Report 2015 from LexBlog.

In the same time frame, the number of firms publishing blogs has more than quadrupled to a total of 163 firms. And eighteen of the top 25 firms are blogging, according to the same source (via ATL).

With all these firms blogging, it’s important to remember that content matters. Just as easily as your firm can attract a wider audience or client base through its posts, it can alienate them.

Which firms may have the most at stake? It’s hard to say, but Fox Rothschild has the most blogs, with 39, and Sheppard Mullin places second with 29 blogs. Womble Carlyle follows closely with 22 blogs, and finally DLA Piper just misses the podium in fourth place, with 21 blogs, according to ATL.

What are these law firms talking about?

  • Employment and labor blogs (132 publications)
  • Corporate and commercial law (104)
  • Financial (100)
  • Intellectual property (73)
  • International (64)
  • Healthcare (55)
  • Administrative (52)
  • Technology (50)
  • Energy (47)
  • Real estate and construction (43)

Finally, you may have guessed, but mobile visits (visits conducted via smartphone or tablet) now account for 25 percent of global Internet traffic —and increase from 14 percent one year ago (via ATL).

So, decide with your marketing team and certainly name partners what message your law firm is hoping to send with its posts. Also come up with a plan for retractions (if any) or legal responsibility for the opinions in the posts. Like all things at the intersection of technology, law, and business, create a policy or manual for your blogging strategy.

In the end, blogging does more good than bad. After all, without blogging or reading others’ blogs, your firm may never know about interesting, informative upcoming events, like the following audio conferences:

  • Counsel’s Guide to Trade Secret Protection: Preventing and Avoiding Costly Errors and Penalties
    • Wednesday, September 16, 2015
  • Reclassifying Exempt Employees: Ensuring Wage and Hour Compliance
    • Wednesday, September 23, 2015 
  • Excel Pivot Tables: Shortcuts, Tricks, and Time-Saving Tips to Crunch Data More Efficiently
    • Tuesday, September 29, 2015 
  • Writing Effective Emails: Mastering The Number One Tool for Business Communication
    • Friday, October 2, 2015
  • Compensating Millennial Associates: Customizing Compensation and Rewards for Increased Productivity and Firm Profitability
    • Thursday, October 8, 2015
  • Partner Compensation: Keys to Compensating Succession and Client Transfers
    • Thursday, November 5, 2015 

To attend, click here.

C4CM audio conferences are live, interactive sessions presented over the telephone. You can attend from any location with phone access. You pay just one low registration fee for as many participants as you wish at one call-in location. Listen in from the convenience of your home, your office or in your conference room with your entire team and immediately put what you’ve learned to work in your department.

Need to reach a wider audience with your posts? Find out how, here.

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Is The Future Bright For Non-Blogging Law Firms?

Your firm may think that it’s above e-gossip or online blogging. But, that’s also what renown law firm K&L Gates thought before its dispute with online reporter, Law360.

Above The Law writer, David Lat, describes the incident with an excerpt from the Law360 piece in his article, “Barbarians at the K&L Gates.”

“Flat profits and spreading concern about the firm’s ability to keep talent are among the reasons more than 80 partners have K&L Gates LLP since the beginning of the year, an exodus that includes many up-and-coming leaders who had been seen as key to the firm’s future, according to some partners who recently left and other experts,” quotes Lat on July 23, 2015.

“Those leaving the 2,000-lawyer firm include rising partners in prized corporate and financial practices and a number of high-profile veterans, including intellectual property litigation heavyweight Michael Bettinger [who moved to Sidley in San Francisco]. Litigators Greg Jackson and Danny Ashby joined veteran Steve Korotash, a former U.S. Securities and Exchange Commission associate director, in a jump to Morgan Lewis & Bockius LLP’s white-collar group in Dallas in March.”

Although K&L Gates Chair Peter Kalis was quickly ready to refute this depiction of his business—a depiction that also made its way into a Blomberg article—Kalis lacked an online presence. He and his firm were at a disadvantage in spreading their side of the story.

Notorious legal blogger Kevin O’Keefe followed up with his own Above The Law post titled, “Non-Blogging Law Firm Managing Partners And CEOs Playing With Fire?” in which he writes, “[a] memo leaked to Above The Law and Kalis spoke to Bloomberg on July 29th for a July 30th piece reporting that the partner departures were a natural result of the firm’s strategy.”

“I can’t help but see the irony in Kalis calling for everyone at K&L to take a stand in the media when neither he nor they have an effective media presence. Where’s their voice?”

And that’s the problem with being a Luddite in law. The most efficient and effective way to defend your firm’s image and, by proxy, your clients is the world wide web. After all, it’s in the name, the audience is world-wide.

Perhaps you already host a law firm blog but your posts don’t seem to go anywhere. Delivery mechanisms are equally important to social media.

Here are a few tips on how to get your content shared. But, beware, with every benefit to technology comes certain pitfalls of which your firm should be weary.

1. Publish your posts on media aggregators.

Websites like Reddit, Shoutwire, and Digg allow individuals to submit links to websites, blog posts, or any Internet-based page. The community of readers then votes up (or down) the link based on a review of its content. Create flashy titles and you’ll likely see in a flash the rise of your readership.

Beware: Comments by readers can be harsh. The anonymity of the Internet allows people to write down criticisms (NSFW) that may end up permanently cached on the World Wide Web.

2. Add website sharing buttons.

Your firm’s website should have links to all of your social media accounts, as well as ways to share your posts. Programs like “Click to Tweet” make this easy.

Beware: Your firm may need a small amount of Internet savvy to create buttons on your website and restore broken links.

3. Create interesting content.

This is so obvious your firm is likely already doing it! Nevertheless, remember to write thoughtful arguments accompanied with eye-catching photos. There’s so much competition already when it comes to online content, your firm’s additions must stand out.

Beware: Yes, this requires a little more time and thought to write captivating posts and tweets.

4. Do your research.

If you know what time your readers are log on then you’ll know the best time to publish your posts. Maybe you’re getting a lot of hits first thing in the morning. People are remiss to start work at 8am and decide to read legal news or browse the web. With this knowledge, you can now set your social media to publish at certain times to target your audience.

Beware: Due diligence on your casework is no longer enough. Time to do due diligence on your business development, too.

5. Crossover multiple social media platforms.

Happy you finally mastered the art of blogging for your firm? Time to summarize that blog post on your LinkedIn and Facebook page and compile a 140-character hook for your Twitter account. Don’t be afraid to repeat the same ideas on different mediums.

Beware: Now you’ll have to memorize more usernames and passwords. More social media means more potential backlash.

In the end, it’s possible to circulate your firm’s strategy about hiring, firing, and work ethic before a biased, and certainly less-informed secondary source scoops you.

Start small by using the above tips to get your firm’s content shared on social media.

Last tip: proofread, never post when emotional or angry, and generally be sure it’s content that your firm truly wants shared.

The question for organizations is how do you use these tools to open up communications with your workers, candidates and customers, while protecting your reputation as an organization?

Attend C4CM’s course, “Facebook, LinkedIn and Twitter: Developing a Successful Social Media Employer Branding Strategy.“

If you’re looking for tips on communication practices in the workplace, read C4CM’s guide “Communication Skills for Managers: Tips, Techniques, and Best Practice Strategies to Communicate More Effectively.“

Applying successful communication techniques gives you two important advantages: (1) You’ll create a harder-working and more productive employee workforce, and (2) you’ll be less likely to fall into the clutches of employee lawsuits.

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New Supreme Court Ruling On Free Speech & Social Media: What Your Law Firm Should Know

Among the myriad possibilities that the Internet age brought to Americans—such as online shopping and instant GPS location—came an equal number of threats to our sanity and security—like cyber attacks and online bullying.

Courts are still reviewing the legal status of the digital businesses that may or may not add value to society, like Airbnb and Uber, or conflict with First Amendment Rights. But yesterday, in an 8-1 decision, the Supreme Court made strides to rule on free speech and social media.

The Supreme Court ruled in favor or a Pennsylvania man who posted violent messages on Facebook and was convicted under a federal statute. The man, Anthony Elonis, testified that some of his violent posts on Facebook were partly inspired by rap star Eminem and posted as a therapeutic response to cope with depression.

Elonis’ lawyer emphasized, “The First Amendment’s basic command is that the government may not prohibit the expression of an idea simply because society finds it offensive or disagreeable,” according to CNN.

The Supreme Court agreed with Elonis. The Court decided that intent must be firmly established before a person can be criminally prosecuted for words they post online, whether or not the average person may perceive these words as threatening.

“Wrongdoing must be conscious to be criminal,” Chief Justice John Roberts Jr. wrote for the seven-member majority.

“Our holding makes clear that negligence is not sufficient to support a conviction,” continued Chief Justice John Roberts Jr.

Although the Court decided that the legal standard to convict Elonis was too low, they did not tackle the larger constitutional issue at hand: what is the proper standard?

“There’s one way to love you but a thousand ways to kill you,” Elonis wrote in one post, according to the New York Times.

“Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined,” he wrote in another.

At what point can online messages constitute a real, tangible, and prosecutable threat?

Has the Internet become a field of free-reign when it comes to expression? How can lawyers establish intent based purely on statements expressed via social media?

At the same time, had the Supreme Court upheld Elonis’ previous conviction (for which he was jailed 44 months), suddenly Americans would be held accountable to a criminal degree for every statement they make online—even when the posts are simply meant to vent, not threaten.

Justice Thomas, however, would have upheld Mr. Elonis’s conviction. In a minority opinion (via NYT), he said:

“This failure to decide [by the majority] throws everyone from appellate judges to everyday Facebook users into a state of uncertainty.”

That it does.

In today’s Facebook world, lawyers have an obligation to perform research on social media sites during investigations. And, knowing where the line is drawn is crucial to keeping out of ethical trouble.

Even when it’s not the primary source of prosecution, like in Elonis’ case, social media profiles are a potential treasure trove of information in litigation.

But using social networking can ensnare attorneys in ethical traps in two different ways: (1) when accessing information in someone else’s profile, and (2) when an attorney’s own profile information might be used against them.

So, how can you effectively use social networks to gather information to gain a legal edge while ethically keeping out of trouble, particularly in light of this SCOTUS ruling?

Take the Center For Competitive Management (C4CM)’s comprehensive webinar, “Using Social Media in Legal Investigations: Traversing the Ethical Minefield,” which explores key strategies to improve your legal investigation on social media while keeping yourself safe from legal and ethical pitfalls.

This webinar, along with other online training resources, can be found online here.

The Supreme Court may not want to address the larger ethical issue at hand with social media and free speech, but your law firm can.

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