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How Facebook Could Ruin Your Case
Like the perpetually feuding families the Hatfields and the Mccoys, attorney Mitch Jackson’s client and his neighbors were involved in an ongoing dispute since September 2007. The neighbors had dumped trash into the client’s yard on a number of occasions and verbally harassed them while crossing paths within the community. The last straw was when the abusive neighbors injured the client’s dog, resulting in some hefty vet bills. Jackson’s clients decided to sue.
To win the case, Jackson, who is a senior partner at the Jackson and Wilson law firm in Orange County, would need to show the jury that the neighbors had a history of harassing his client with vulgar threats. But when the defendant took the stand, he testified that it was not in his character to use such crude and profane language. That’s when Jackson pulled up the defendant’s Facebook page.
“We had photocopied his Facebook wall, where he had posted general derogatory comments,” Jackson says. “When we did that, he tried to explain how that could not constitute the type of language we had attributed to him earlier.”
- Attorneys can mine your Facebook and Twitter accounts for evidence.
- Deleting your social media accounts during trial can result in penalties.
- Your lawyer should counsel you on how to use social media while your case is ongoing.
The jury ended up awarding Jackson’s plaintiff more than $430,000 in damages. Speaking to the jury after the trial, Jackson discovered the Facebook wall postings were a key factor in diminishing the defendant’s credibility.
Jackson’s case illustrates how social media, like Facebook and Twitter, are changing the legal landscape for defendants and plaintiffs alike. With so much personal information voluntarily being made public, it’s no surprise things like wall posts and Tweets are showing up as evidence in court. And Jackson says this is something that all lawyers and consumers need to be cognizant of.
Be Careful What You Post
Over the last few years, social media sites have blown up in a big way. According to Facebook, there are more than 800 million active users on the site’s network, with more than half of these users logging into the site each day. On average, more than 250 million photos are uploaded to the site each day, while the average user is connected to more than 80 community pages, groups and events. Meanwhile, Twitter sees more than 1 billion Tweets posted per week, with an average of about 140 million per day.
“Anytime you are trying a case, it is the trial attorney’s obligation and duty to accumulate as much information as he or she can to support the client’s case or defend against it,” Jackson says. “Many trial lawyers today are learning as much as they can about the parties and the witnesses through social media sites. And what people need to understand is that this information doesn’t simply evaporate into thin air after it leaves your screen. It can be mined, analyzed and reviewed in civil and criminal cases.”
Jackson sites an example where a high school varsity football playersuffered brain injuries during the course of a game. The player had alerted a coach to a malfunction with his helmet before taking the field, but the coach allegedly brushed off the problem and instructed the student to play. The case was complicated by the fact that by the time the player sued, he had gone to college where pictures of him fraternizing and partying were taken and posted to his Facebook page.
“These pictures gave the wrong impression as to the severity of his diagnosed brain injury,” Jackson says. “But I happened to know he was seeking extensive care for those injuries, which affected a number of things including his ability to concentrate in school.”
Jackson was careful not to instruct the student to take down his Facebook photos, a measure which could be construed as tampering with evidence. This kind of evidence tampering is referred to asspoliation in many states and can result in serious penalties. Instead, Jackson counseled his client to not post any new information on his Facebook page while the trial was ongoing.
Making Social Media Work for You
This proliferation of evidence isn’t all bad, says Jackson. Plaintiffs and defendants can use social media sites to their advantage by using these networks to promote their side of the case.
“People can use social media sites to share their stories accurately and truthfully,” Jackson says. “As long as you have a message to share and it is honest, social media can actually have beneficial ramifications.”
Jackson encourages his lawyer colleagues to consider leveraging the power of social media sites to benefit their clients. As Internet access becomes more ubiquitous with the rise of smartphones, the public, and even jurors, are more likely to conduct their own research into a case. Jackson says you may as well put forth your side of the story.
“This is something that lawyers need to look at for planting seeds for truthful information so that if somebody, for whatever reason, chooses to go online and research facts and issues concerning a case, you may be able to direct them toward accurate information,” he says.
Jackson says that although individuals need to be aware of the consequences of posting to social media sites, the obligation to remind them of these ramifications falls on the shoulders of their attorneys.
“Lawyers need to counsel their clients about social media and to instruct them to either stop posting or to update their accounts with honest information about their case,” Jackson says. “Also, people should not post anything that references their injury, accident or dispute without first talking to their attorneys.”
SEPTEMBER 10, 2013
HOW FACEBOOK MAKES US UNHAPPY
No one joins Facebook to be sad and lonely. But a new study from the University of Michigan psychologist Ethan Kross argues that that’s exactly how it makes us feel. Over two weeks, Kross and his colleagues sent text messages to eighty-two Ann Arbor residents five times per day. The researchers wanted to know a few things: how their subjects felt overall, how worried and lonely they were, how much they had used Facebook, and how often they had had direct interaction with others since the previous text message. Kross found that the more people used Facebook in the time between the two texts, the less happy they felt—and the more their overall satisfaction declined from the beginning of the study until its end. The data, he argues, shows that Facebook was making them unhappy.
Research into the alienating nature of the Internet—and Facebook in particular—supports Kross’s conclusion. In 1998, Robert Kraut, a researcher at Carnegie Mellon University, found that the more people used the Web, the lonelier and more depressed they felt. After people went online for the first time, their sense of happiness and social connectedness dropped, over one to two years, as a function of how often they used the Internet.
Lonelier people weren’t inherently more likely to go online, either; a recent review of some seventy-five studies concluded that “users of Facebook do not differ in most personality traits from nonusers of Facebook.” (Nathan Heller wrote about loneliness in the magazine last year.) But, somehow, the Internet seemed to make them feel more alienated. A 2010 analysis of forty studies also confirmed the trend: Internet use had a small, significant detrimental effect on overall well-being. One experiment concluded that Facebook could even cause problems in relationships, by increasing feelings of jealousy.
Another group of researchers has suggested that envy, too, increases with Facebook use: the more time people spent browsing the site, as opposed to actively creating content and engaging with it, the more envious they felt. The effect, suggested Hanna Krasnova and her colleagues, was a result of the well-known social-psychology phenomena of social comparison. It was further exacerbated by a general similarity of people’s social networks to themselves: because the point of comparison is like-minded peers, learning about the achievements of others hits even harder. The psychologist Beth Anderson and her colleagues argue, in a recent review of Facebook’s effects, that using the network can quickly become addictive, which comes with a nagging sense of negativity that can lead to resentment of the network for some of the same reasons we joined it to begin with. We want to learn about other people and have others learn about us—but through that very learning process we may start to resent both others’ lives and the image of ourselves that we feel we need to continuously maintain. “It may be that the same thing people find attractive is what they ultimately find repelling,” said the psychologist Samuel Gosling, whose research focusses on social-media use and the motivations behind social networking and sharing.
But, as with most findings on Facebook, the opposite argument is equally prominent. In 2009, Sebastián Valenzuela and his colleagues came to the opposite conclusion of Kross: that using Facebook makes us happier. They also found that it increases social trust and engagement—and even encourages political participation. Valenzuela’s findings fit neatly with what social psychologists have long known about sociality: as Matthew Lieberman argues in his book “Social: Why Our Brains are Wired to Connect,” social networks are a way to share, and the experience of successful sharing comes with a psychological and physiological rush that is often self-reinforcing. The prevalence of social media has, as a result, fundamentally changed the way we read and watch: we think about how we’ll share something, and whom we’ll share it with, as we consume it. The mere thought of successful sharing activates our reward-processing centers, even before we’ve actually shared a single thing.
Virtual social connection can even provide a buffer against stress and pain: in a 2009 study, Lieberman and his colleagues demonstrated that a painful stimulus hurt less when a woman either held her boyfriend’s hand or looked at his picture; the pain-dulling effects of the picture were, in fact, twice as powerful as physical contact. Somehow, the element of distance and forced imagination—a mental representation in lieu of the real thing, something that the psychologists Wendi Gardner and Cindy Pickett call “social snacking”—had an anesthetic effectâ€š one we might expect to carry through to an entire network of pictures of friends.
The key to understanding why reputable studies are so starkly divided on the question of what Facebook does to our emotional state may be in simply looking at what people actually do when they’re on Facebook. “What makes it complicated is that Facebook is for lots of different things—and different people use it for different subsets of those things. Not only that, but they are alsochanging things, because of people themselves changing,” said Gosling. A 2010 study from Carnegie Mellon found that, when people engaged in direct interaction with others—that is, posting on walls, messaging, or “liking” something—their feelings of bonding and general social capital increased, while their sense of loneliness decreased. But when participants simply consumed a lot of content passively, Facebook had the opposite effect, lowering their feelings of connection and increasing their sense of loneliness.
In an unrelated experiment from the University of Missouri, a group of psychologists found a physical manifestation of these same effects. As study participants interacted with the site, four electrodes attached to the areas just above their eyebrows and just below their eyes recorded their facial expressions in a procedure known as facial electromyography. When the subjects were actively engaged with Facebook, their physiological response measured a significant uptick in happiness. When they were passively browsing, however, the positive effect disappeared.
This aligns with research conducted earlier this year by John Eastwood and his colleagues at York University in a meta-analysis of boredom. What causes us to feel bored and, as a result, unhappy? Attention. When our attention is actively engaged, we aren’t bored; when we fail to engage, boredom sets in. As Eastwood’s work, along with recent research on media multitasking, have illustrated, the greater the number of things we have pulling at our attention, the less we are able to meaningfully engage, and the more discontented we become.
In other words, the world of constant connectivity and media, as embodied by Facebook, is the social network’s worst enemy: in every study that distinguished the two types of Facebook experiences—active versus passive—people spent, on average, far more time passively scrolling through newsfeeds than they did actively engaging with content. This may be why general studies of overall Facebook use, like Kross’s of Ann Arbor residents, so often show deleterious effects on our emotional state. Demands on our attention lead us to use Facebook more passively than actively, and passive experiences, no matter the medium, translate to feelings of disconnection and boredom.
In ongoing research, the psychologist Timothy Wilson has learned, as he put it to me, that college students start going “crazy” after just a few minutes in a room without their phones or a computer. “One would think we could spend the time mentally entertaining ourselves,” he said. “But we can’t. We’ve forgotten how.” Whenever we have downtime, the Internet is an enticing, quick solution that immediately fills the gap. We get bored, look at Facebook or Twitter, and become more bored. Getting rid of Facebook wouldn’t change the fact that our attention is, more and more frequently, forgetting the path to proper, fulfilling engagement. And in that sense, Facebook isn’t the problem. It’s the symptom.
Photograph by Luong Thai Linh/EPA/Corbis
Alimony…Once More With Feeling
Understanding the intersection of human emotion and economic theory will help you serve your clients better as they navigate disagreements during marriage and during divorce.
Justin A. Reckers and Robert A. Simon, 08/15/2013
Psychological, financial, and legal professionals who work with clients going through the divorce process recognize the importance of assisting them to think strategically about financial decisions and how to avoid allowing emotions to unduly and inappropriately cloud their vision. Emotions readily and often inappropriately influence rational decision-making, and divorce evokes profound emotions that often de-rail economically rational decision-making in the midst of the upheaval.
Experience in practice as well as attention to the divorce literature results in more insight into the kinds of disagreements that lead couples to divorce in the first place. We now have research-derived empirical evidence that disagreements over financial matters are the leading cause of divorce across all socioeconomic levels in the United States. It turns out disparate values around money and the meaning attributed to money are more difficult to navigate than arguments about sex, household chores, child rearing, or offensive in-laws. More often than not, the disagreements had during marriage will spill over into divorce negotiations and possibly persist long after the judgment of dissolution is entered and spouses are officially divorced.
Couples often make an economic decision to have one party postpone the development of their career in the interest of rearing the children at home. It saves day-care costs and hopefully allows hands-on parenting. The decision of who will be the stay-at-home parent is also an economic one based simply on comparative advantage. Whoever has a more stable job, a more promising career path, and/or and the ability to make more money is probably going to be the one working. The individual staying at home is likely to be the person whose income prospects are not as bright as the working spouse.
When the marriage ends this joint arrangement, interesting and complex things can happen. The non-working or stay-at-home party will probably find that he or she can no longer afford to remain out of the work force. Thus, this parent must return to the labor market after being a stay-at-home parent.
For many, this is a recipe for disaster. They may need to go back to college to retrain in order to find work or take a position working for minimum wage. On the other hand, for the spouse who has been working, there is often a feeling of being exploited. They have worked and earned an income. Because of this, they now are in the position of having to pay a portion of that income to their soon-to-be former spouse. If the working parent happens to be someone who owns their own business, they may also end up having to buy out their spouse’s portion of the value of the business and support the spouse as well. No wonder many couples choose not to get divorced due to the negative financial consequences.
Alimony is a simple economic concept. It acts as an extension of the lifestyle that was enjoyed during marriage in order to protect individuals and families with disparate incomes. Alimony is not just for full-time homemakers. Working individuals are often awarded alimony in circumstances where their former spouse earns considerably more.
When making an alimony award, courts are asked to look at statutory factors (aka the law)–including, but not limited to, the “battlegrounds” detailed below–then develop, as the State of New York puts it, “nuanced treatment of the parties’ individualized circumstances.”
2. Ability of supported party to earn an income of their own. Should a party who spent 18 years as a full-time parent and homemaker be expected to re-enter the workforce? If so, when, and how much can they earn?
3. Needs of the supported party. Just how much does a middle-class Midwestern homemaker need? How about a Los Angeles socialite? Does the standard of living enjoyed during the marriage play a role?
4. Duration of the payments. How long will the payments last? This is usually the most contentious conflict. In many states it could be “permanent” in the case of a long-term marriage.
As you may have guessed, the payer wants to pay as little as possible for as short a time period as possible. The payee wants as much as possible for as long as possible. Every dollar moved to one party is a dollar the other party loses. Interestingly, there is research that suggests that women who are in a position to be the alimony payer (i.e., who are the higher earner) fight far harder to keep their obligation in check than their male counterparts.
The Ambiguity Problem
The entire process of determining the amount and duration of an alimony order is rife with ambiguity and a lack of precision. What does “nuanced treatment of the parties’ individualized circumstances” mean?
It basically means that a judge is required to look at all the factors presented by the lawyers on each side of the case and make a judgment call. Leaving this judgment call in the hands of the judge scares most people and leaves them hoping the judge will get it right (that is, see things their way). We should all educate our clients from operating on this assumption, because what they think is right may not resonate with their spouse or the judge. This ambiguity and the long-term nature of alimony payments can make it the most difficult piece of a divorce to settle.
Following are some strategies you may consider employing as you help clients through this difficult process:
2. Considering Options: We find it helpful when working with clients to remind them that, if they both choose, their settlement can be different than what a judge would order. We then help to develop creative options for their consideration. The strategic thinking required in the creation of these options helps to draw a client out of the minutiae of the statutory guidelines and remove the ambiguity. In fact, there is abundant empirical evidence showing that when people create their own outcomes and are the authors of their own decisions, conflict decreases and feelings of efficacy, empowerment, and well-being increase.
Remember, clients can choose to settle their case however they wish. The dictates of the law only come into play when matters are put directly before the court. When negotiating divorce settlements, including alimony, consider the law as a potential guide but not a book of “musts” or “rules.”
3. Taking Control: Many clients have feelings of helplessness when leaving their future in the hands of a judge. Engaging clients in settlement discussions and helping them conceptualize long-term outcomes remove feelings of helplessness. We often couch it as taking control of your financial future. Part of taking control is taking the decision-making power out of judges’ hands. Alternative dispute resolution models such as collaborative divorce and mediation are great options for divorce proceedings. These processes have self-determination at their core. Clients can also take control of a litigated process by engaging in settlement conferences.
Over the coming months, we will take a more detailed look at some real life decision-making processes that unravel during a divorce, including cash-flow management, small business management, financial infidelity, retirement planning, and legacy planning through the eyes of clients navigating the most chaotic time in their lives.
How Reading Makes Us More Human
A battle over books has erupted recently on the pages of The New York Timesand Time. The opening salvo was Gregory Currie’s essay, “Does Great Literature Make Us Better?” which asserts that the widely held belief that reading makes us more moral has little support. In response, Annie Murphy Paul weighed in with “Reading Literature Makes Us Smarter and Nicer.” Her argument is that “deep reading,” the kind of reading great literature requires, is a distinctive cognitive activity that contributes to our ability to empathize with others; it therefore can, in fact, makes us “smarter and nicer,” among other things. Yet these essays aren’t so much coming to different conclusions as considering different questions.
To advance her thesis, Paul cites studies by Raymond Mar, a psychologist at York University in Canada, and Keith Oatley, a professor emeritus of cognitive psychology at the University of Toronto. Taken together, their findings suggest that those “who often read fiction appear to be better able to understand other people, empathize with them and view the world from their perspective.” It’s the kind of thing writer Joyce Carol Oates is talking about when she says, “Reading is the sole means by which we slip, involuntarily, often helplessly, into another’s skin, another’s voice, another’s soul.”
Oatley and Mar’s conclusions are supported, Paul argues, by recent studies in neuroscience, psychology, and cognitive science. This research shows that “deep reading — slow, immersive, rich in sensory detail and emotional and moral complexity — is a distinctive experience,” a kind of reading that differs in kind and quality from “the mere decoding of words” that constitutes a good deal of what passes for reading today, particularly for too many of our students in too many of our schools (as I have previously written about here).
Paul concludes her essay with a reference to the literary critic Frank Kermode, who famously distinguishes between “carnal reading” — characterized by the hurried, utilitarian information processing that constitutes the bulk of our daily reading diet — and “spiritual reading,” reading done with focused attention for pleasure, reflection, analysis, and growth. It is in this distinction that we find the real difference between the warring factions in what might be a chicken-or-egg scenario: Does great literature make people better, or are good people drawn to reading great literature?
Currie is asking whether reading great literature makes readers more moral — a topic taken up by Aristotle in Poetics (which makes an ethical apology for literature). Currie cites as counter-evidence the well-read, highly cultured Nazis. The problem with this (aside from falling into the trap of Godwin’s Law) is that the Nazis were, in fact, acting in strict conformity to the dictates of a moral code, albeit the perverse code of the Third Reich. But Paul examines the connection of great literature not to our moral selves, but to ourspiritual selves.
What good literature can do and does do — far greater than any importation of morality — is touch the human soul.
Reading is one of the few distinctively human activities that set us apart from the rest of the animal kingdom. As many scholars have noted, and Paul too mentions in her piece, reading, unlike spoken language, does not come naturally to human beings. It must be taught. Because it goes beyond mere biology, there is something profoundly spiritual — however one understands that word — about the human ability, and impulse, to read. In fact, even the various senses in which we use the word captures this: to “read” means not only to decipher a given and learned set of symbols in a mechanistic way, but it also suggests that very human act of finding meaning, of “interpreting” in the sense of “reading” a person or situation. To read in this sense might be considered one of the most spiritual of all human activities.
It is “spiritual reading” — not merely decoding — that unleashes the power that good literature has to reach into our souls and, in so doing, draw and connect us to others. This is why the way we read can be even more important than whatwe read. In fact, reading good literature won’t make a reader a better person any more than sitting in a church, synagogue or mosque will. But reading good bookswell just might.
It did for me. As I relayed in my literary and spiritual memoir, the books I have read over a lifetime have shaped my worldview, my beliefs, and my life as much as anything else. From Great Expectations I learned the power the stories we tell ourselves have to do either harm and good, to ourselves and to others; fromDeath of a Salesman I learned the dangers of a corrupt version of the American Dream; from Madame Bovary, I learned to embrace the real world rather than escaping into flights of fancy; from Gulliver’s Travels I learned the profound limitations of my own finite perspective; and from Jane Eyre I learned how to be myself. These weren’t mere intellectual or moral lessons, although they certainly may have begun as such. Rather, the stories from these books and so many others became part of my life story and then, gradually, part of my very soul.
As Eugene H. Peterson explains in Eat this Book, “Reading is an immense gift, but only if the words are assimilated, taken into the soul — eaten, chewed, gnawed, received in unhurried delight.” Peterson describes this ancient art oflectio divina, or spiritual reading, as “reading that enters our souls as food enters our stomachs, spreads through our blood, and becomes … love and wisdom.” More than the books themselves, it is the skills and the desire to read in this way which comprise the essential gift we must give our students and ourselves. But this won’t happen by way of nature or by accident.
Maryanne Wolf, director of the Center for Reading and Language Research and author of Proust and the Squid: The Story and Science of the Reading Brain, has studied “deep reading” in the context of the science of the brain. She describes the fragility of the brain’s ability to read with the kind of sustained attention that allows literature to wield its shaping power over us:
The act of going beyond the text to analyze, infer and think new thoughts is the product of years of formation. It takes time, both in milliseconds and years, and effort to learn to read with deep, expanding comprehension and to execute all these processes as an adult expert reader. … Because we literally and physiologically can read in multiple ways, how we read–and what we absorb from our reading — will be influenced by both the content of our reading and the medium we use.
The power of “spiritual reading” is its ability to transcend the immediacy of the material, the moment, or even the moral choice at hand. This isn’t the sort of phenomenon that lends itself to the quantifiable data Currie seeks, although Paul demonstrates is possible, to measure. Even so, such reading doesn’t make us better so much as it makes us human.
This is the actual flag at our office. Feels great to see it waving every morning! Thanks to all those who make that happen! Happy and Safe Memorial Day everyone!
ScienceDaily (May 8, 2012) — People of all ages and cultures gesture while speaking, some much more noticeably than others. But is gesturing uniquely tied to speech, or is it, rather, processed by the brain like any other manual action?
A U.S.-Netherlands research collaboration delving into this tie discovered that actual actions on objects, such as physically stirring a spoon in a cup, have less of an impact on the brain’s understanding of speech than simply gesturing as if stirring a spoon in a cup. This is surprising because there is less visual information contained in gestures than in actual actions on objects. In short: Less may actually be more when it comes to gestures and actions in terms of understanding language.
Spencer Kelly, associate professor of Psychology, director of the Neuroscience program, and co-director of the Center for Language and Brain at Colgate University, and colleagues from the National Institutes of Health and Max Planck Institute for Psycholinguistics will present their research at the Acoustics 2012 meeting in Hong Kong, May 13-18, a joint meeting of the Acoustical Society of America (ASA), Acoustical Society of China, Western Pacific Acoustics Conference, and the Hong Kong Institute of Acoustics.
Among their key findings is that gestures — more than actions — appear to make people pay attention to the acoustics of speech. When we see a gesture, our auditory system expects to also hear speech. But this is not what the researchers found in the case of manual actions on objects.
Just think of all the actions you’ve seen today that occurred in the absence of speech. “This special relationship is interesting because many scientists have argued that spoken language evolved from a gestural communication system — using the entire body — in our evolutionary past,” points out Kelly. “Our results provide a glimpse into this past relationship by showing that gestures still have a tight and perhaps special coupling with speech in present-day communication. In this way, gestures are not merely add-ons to language — they may actually be a fundamental part of it.”
A better understanding of the role hand gestures play in how people understand language could lead to new audio and visual instruction techniques to help people overcome major challenges with language delays and disorders or learning a second language.
What’s next for the researchers? “We’re interested in how other types of visual inputs, such as eye gaze, mouth movements, and facial expressions, combine with hand gestures to impact speech processing. This will allow us to develop even more natural and effective ways to help people understand and learn language,” says Kelly.
I have wanted a blog of my own since I first heard the depressing sounding word! And now I have it! One more thing I can mark off the list. Of course, there is still become rich and famous and world domination on the list, but I am getting there!