Litigation is an adversarial process that is used to arrive at the truth. A court case is a contest between two parties. Each party marshals evidence in support of his or her position, while cross-examining the other party’s witnesses. Each party also presents evidence that disproves the other party’s case. Justice is achieved when one party is able to convince the judge that his or her perspective on the case is the correct one. This adversarial method is the core of the justice system. Every day, cases are won and lost on the evidence.
Impeachment is a formal process in which a person is “caught” in a lie. It is used to challenge the honesty or credibility of a person. The only way this can occur is if the evidence of a witness is challenged by “other” evidence.
Historically, a party would have limited access to evidence of their opponent. Evidence of an opponent’s behaviour was difficult to locate. As a result, lawyers would retain private investigators, demand disclosure of records and conduct out-of-court oral examinations to build a case against their opponent.
Now there is an over-supply of evidence. Today, social media is the go-to place for evidence. The internet is filled with photographs, videos and posts covering every aspect of a person’s life–public, private, personal, social, sexual, professional, academic, athletic, religious and more. Social media sites include Facebook, LinkedIn, Twitter, Instagram, Youtube, Vimeo, Snapchat and many more. They offer the equivalent of a warehouse of evidence. This warehouse is open 24/7, its inventory is free and anyone can access it. Lawyers now can set search functions on their browser to perform an automatic daily search of any content by name, subject or place. The results can be emailed to the lawyer or anyone.
According to the American Academy of Matrimonial Lawyers, 81% of its members use evidence derived from social media websites as part of their cases.
As lawyers are desperately searching for evidence to impeach an opponent and disprove their case, parents involved in a court case are naively (read: ignorantly) feeding the internet with evidence that can be used against them. BE CAREFUL
Editorial Note: Originally published in 2018, this article remains an essential reminder for anyone involved in family law litigation. With the growth of social media and digital footprints, the risks of self-incrimination have only increased. The advice here is more relevant than ever: think before you post.
Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., Cert.F.Med., C.Arb., FDRP PC, is the founder and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law, a Certified Specialist in Parenting Coordination and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator/Arbitrator and Parenting Coordinator. Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation/Arbitration to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.
Share this article on: