Category: Trial Practice

Evidence Rules Interplay – Authenticating Facebook Posts and YouTube Videos

Evidence Rules 901, 803 and 902 respectively govern authentication generally, the foundation rules for business records, and “self-authenticating” documents at trial.

The Fourth Circuit recently examined the interplay between these rules in the context of a Federal conspiracy trial.  In  United States v. Hassan, 742 F.3d 104 (4th Cir. Feb. 4, 2014), the Fourth Circuit affirmed a jury’s conviction of two defendants based in part on inflammatory, jihad-inspired Facebook posts and YouTube training videos attributed to them.

The Court first held that the threshold showing for authenticity under Rule 901 is low.  All that’s required is the offering party must make a prima facie showing that the evidence is what the party claims it is.  FRE 901(a).  In the context of business records, Rule 902(11) self-authenticates these records where they satisfy the strictures of Rule 803(6) based on a custodian’s certification.  Rule 803(6), in turn, requires the offering party to establish that (a) the records were made at or near the time (of the recorded activity) by – or from information transmitted by  – someone with knowledge, (b) that the records were “kept in the course of a regularly conducted activity or business”; and (c) that making the records was a regular practice of the business. FRE 803(6)(a)-(c).

Applying these rules, the Court held that certifications from Google’s and Facebook’s records custodians established the foundation for the Facebook “wall” posts and YouTube terror training videos.  In addition, the Court found that the prosecution sufficiently connected the two conspiracy defendants to the Facebook posts and YouTube videos by tracing them to internet protocol addresses that linked both defendants to the particular Facebook and YouTube accounts that generated the posts.

Notes: For a more detailed discussion of Hassan as well as an excellent resource on social media evidence developments, see the Federal Evidence Review (http://federalevidence.com/blog/2014/february/authenticating-facebook-and-google-records)

 

Facebook Posts Not Hearsay Where Offered To Show How Ex-Wife Presented Relationship To Others – Illinois Case Note

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Reversing a family law judge’s decision to terminate ex-spousal maintenance, the Second District appeals court in In re Marriage of Miller, 2015 IL App(2d) 140530 delves into the foundation requirements for getting Facebook pages into evidence and again highlights the crucial role social media plays in litigation in this digitally saturated culture.

The trial court granted the ex-husband (“Husband”) motion to terminate maintenance payments to his ex-wife (“Wife”) based on her multiple Facebook posts that she was in a relationship and (presumably) living with another man.  Illinois divorce law posits that maintenance payments must cease when the recipient remarries or cohabitates with another on a continuing basis.

Since the Facebook posts revealed the Wife frequently trumpeting her new relationship, the court found that the policies behind maintenance payments would be compromised by allowing the Wife to continue receiving payments from Husband.

The Wife appealed, arguing that the trial court shouldn’t have allowed her Facebook posts into evidence.

Held: Reversed (but on other grounds).  Wife’s social media posts were properly authenticated, not hearsay and any prejudice to her didn’t substantially outweigh the posts’ probative value.

Rules/reasoning:

– To enter a document into evidence at trial or on summary judgment, the offering party must lay a foundation for it;

– The party offering the document into evidence – including a document to impeach (contradict) a witness on the stand – must authenticate the document through the testimony of a witness who has personal knowledge sufficient to satisfy the court that the document is what the proponent claim it is;

– To lay a foundation for an out-of-court statement (including a document), the party attempting to get the statement into evidence must direct the witness to the time, place, circumstances and substance of the statement;

– Hearsay is a statement, other than made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted;

– When the making of statement is the significant fact, hearsay isn’t involved (ex: the mere fact that a conversation took place isn’t hearsay);

Here, the court found that the Facebook posts weren’t offered for their truth.  Instead, they were offered to illustrate the way the Wife was portraying her current relationship to others.  The court deemed the posts relevant to the issue of how “public” or “out in the open” the Wife was about the relationship. 

And since the Husband didn’t offer the posts for the truth of their contents (that Wife was in fact living with someone and so disqualified from further maintenance payments) but instead to show the court the manner in which the Wife presented the relationship to others, the court properly allowed the posts into evidence.

The Second District also agreed with the trial court that the posts didn’t unfairly prejudice the Wife.  Indeed, the court characterized the posts as “bland”, “cumulative” and less effective than the parties’ live testimony.

(¶¶ 33-38)

The Wife still won though as the appeals court reversed the trial court’s decision to terminate Husband’s maintenance obligations.  The court found that more evidence was needed on the specifics of the Wife’s existing relationship including whether it was continuing and conjugal enough to constitute a “de facto marriage” (as opposed to a “dating” relationship only) and thus exclude the Wife from further maintenance payments from Husband.

Take-aways:

Hearsay doesn’t apply where out-of-court statement has independent legal significance;

Facebook posts authored by a party to lawsuit will likely get into evidence unless their prejudice outweighs their probative value;

Where social media posts are authored by third parties, it injects another layer of hearsay into the evidence equation and makes it harder to get the posts admitted at trial.

Attorneys’ Liens, Contingency Fee Agreements and Quantum Meruit Recovery – An Illinois Case Note

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In a prior post (http://paulporvaznik.com/tag/retaining-lien), I discussed the common law retaining lien, which allows an attorney to keep a client’s papers and property as security for the payment of past due fees.  Another legal device at a lawyer’s disposal to encourage payment is the statutory attorneys’ lien, codified in Illinois at 770 ILCS 5/1.

Grane v. Methodist Medical Center of Central Illinois, 2015 IL App (3d) 130003-U, considers the attorneys’ lien remedy where a client fires his attorney, hires someone else and later rakes in big bucks in a settlement.

The personal injury plaintiff entered a written contingency fee agreement with a law firm (Law Firm 1) whom he (the plaintiff) later fired before hiring new counsel (Law Firm 2).  Law Firm 1 served a written notice of its attorneys’ lien on the defendant hospital while it still represented plaintiff.

When the suit settled for several million dollars, Law Firm 1 sought to recover pursuant to the 30% recovery contingency fee contract.  The trial court agreed and awarded Law Firm 1 nearly $600K: 30% of the total fee award.  Law Firm 2 and plaintiff appealed.

Held: Reversed.

Q: Why?

A: To collect fees under the Illinois Attorney Lien Act, 770 ILCS 5/1, the attorney must file a petition to adjudicate her lien.  A prerequisite to filing a lien petition is that the attorney must have been hired by the client to assert a claim and the lien must have been “perfected.”

To perfect an attorney lien, the claimant must serve notice in writing of his lien upon the party against whom her client has a claim.  The lien may be served by registered or certified mail.

The lien attaches on the date of service of the statutory notice.  An attorneys’ lien must also be perfected during the time there is an attorney-client relationship. (If the attorney waits until after she’s fired to serve the notice, it’s too late.)

When a client fires a lawyer, the fee agreement signed pre-firing is extinguished and no longer exists.  Once that happens, the lawyer’s recourse is to try and recover under a quantum meruit theory: to seek the reasonable value of her services before she was fired.

The quantum meruit factors an Illinois court considers when deciding a fee award include: (1) the skill and standing of the attorney employed, (2) the nature of the case and difficulty of the questions at issue, (3) the amount and importance of the subject matter, (4) the degree of responsibility involved in the management of the case, (5) the time and labor required, (6) the usual, customary fee in the community, and (7) the benefit flowing to the client.  (¶¶ 19-22).

Since the court awarded fees based on a cancelled contingency fee agreement, the appeals court reversed so that the trial court could award the plaintiff’s its fees under the quantum meruit factors.

Takeaway:

The case’s obvious lesson for lawyers is to Track Your Time.  Even in cases where a client isn’t paying by the hour or where it seems unlikely that a fee dispute is likely to ever crystallize.

By keeping diligent time records, the attorney who is fired before a client gets a hefty settlement can show tangible proof of her services and can quantify the dollar value of them.