Trigger Tranquility, Not Outrage: What the Depp v. Heard Trial Can Teach Clients About Communicating During Disputes

Trigger Tranquility, Not Outrage: What the Depp v. Heard Trial Can Teach Clients About Communicating During Disputes

8.9.2022

By Scott L. Malouf and Debra Hamilton

I used to be respected.
People took me at my word
Then I became a lawyer representing Amber Heard.– Objection Hearsay, @thetruegadfly

Clients fighting online battles is usually bad; it generates notoriety, increases costs and raises the stakes for all parties. Naturally, social media victories are of no moment to a judge (“But, your honor, we have 500,000 likes!”).

Worse, internet influencers can mercilessly exploit your client’s problem for popularity. The Amber Heard/Johnny Depp trial is an epic example of online creators commandeering a lawsuit. The lyrics above come from a songwriter’s TikTok about the trial. That video has 2.4 million views. Content creators from lifestyle influencers to K-pop fans posted about the trial, mostly in favor of Depp.[1] Their support of Depp may have been driven completely by their own economic interests:

“Johnny content performed a lot better . . . . When people do post stuff trying to defend Amber Heard, they will lose followers. A lot of major content creators probably don’t even care about it that much – they just care about the views that it gets.” – Content creator[2]

The adversarial nature of such social media discussions linked Heard and Depp’s reputations. Public favorability ratings of both Heard and Depp suffered in connection with the case.[3] Handed this challenge, it is up to Heard and Depp on whether to harm or help each other going forward. Both parties have appealed, and future proceedings may be forthcoming. Heard has hinted that she may write a “tell all” book.

The ongoing connection between Heard and Depp, the effect of social media influencers on both and the notoriety of the trial make this case an excellent pedagogical tool to teach clients about the dangers of using social media and online communications during disputes.[4] This article explains how lawyers can manage client social media practices that make disputes more difficult to resolve.

Current Legal Advice: “Don’t Say Anything!”

Most clients aren’t international celebrities. However, this doesn’t mean that what they say on social media is unimportant. A client may post damning statements or images or communicate with the other party in unproductive ways.

When lawyers discuss the use of social media with clients, the focus is generally on preventing harmful posts or communications. The most common advice is simple: “Don’t say or post anything!”

This is sound advice. Lawyers focus on the creation of potential evidence that may affect a client’s position.[5] Similarly, frequent posts add extra expense and complexity in discovery.

“I Gotta Say Something!”: The Risks of Speech During Ongoing Disputes

There are many situations where client silence is not an option. Clients must speak to the opposing or interested parties during a variety of disputes: employment or educational discrimination claims, family law matters, business disputes during a service agreement, contested ownership of a pet and many others. If a client must communicate, the standard lawyer advice will be to keep statements brief and factual (e.g., “Just say when you will pick up the kids, don’t fight about school.”) and to capture anything untoward the other side posts.

Despite attorney admonitions, some clients feel they must discuss the matter on social media or may hope the dispute will propel the client to becoming an influencer.

Even after a dispute is settled, a client can, knowingly or unknowingly, engage in harmful communications. The client may post something that violates a non-disclosure agreement or an employee may bad-mouth a vendor after a supply dispute is resolved.

Attorneys also need to be mindful of third-party posts that can provide relevant information or affect a client’s perspective. For example, an auto accident or criminal incident might be covered in a local newspaper, news blog or on social media. A client’s family may wish to “set the record straight” through comments or replies. Or a family member might disclose terms of a confidential settlement on social media, possibly threatening the settlement.[6] Students are heavy users of technology, so educational claims may involve third parties sharing relevant information or affecting client views. Even attorneys can be outsiders influencing a party.[7]

Social Media Triggers Our Emotions and Reduces a Client’s Ability To Resolve a Dispute

Beyond providing potential evidence, social media can affect a client’s perception of the opponent or the matter as well as influence substantive decisions. Social media’s innate properties may also undermine the parties’ ability to reach a collaborative, or even reasonable, resolution in several ways:

1. Social media and our devices constantly tempt us. Smartphones are omnipresent and our online accounts demand our attention (have you been notified of a text, post or email while reading this article?). Also, without prompting, many of us look at these devices in quiet moments, for fear of missing a message or funny post or just to soothe anxiety or relieve boredom.
2. Online tools are required for modern life. If we wished to end heated, unthoughtful communications between disputing parties, we could build in a cooling-off period. We could insist all communications take place via U.S. mail. However, in 2022, few of us would take a bet that clients would select that option or feel able to manage their affairs wholly offline.
3. Social media posts can be emotionally fulfilling for their creators and recipients. If an employee experiences unfavorable treatment at the hands of management, writing a post or creating a TikTok can give the employee a sense of power over a perceived injustice. Receiving likes, positive comments, and/or seeing the post go viral adds to that sense of fulfillment for many.
4. Many successful creators prefer emotional content; it is generally more engaging and more likely to go viral. Tools such as one-sided descriptions, simple and/or simplistic framing, ad hominem attacks, coarse language and other techniques may promote user engagement. They also are highly likely to anger, frustrate or humiliate the subject of the post and encourage similar responses.

These social media factors, especially when communicating with an opponent, reduce all parties’ ability to see the dispute dispassionately and work collaboratively to resolve the matter.

Tools To Get Ahead of the Problem

So how do attorneys keep clients out of this spiral?

Learn the pitfalls of social media and discuss the risks with clients.[8] Explain that social media posts about or relevant to the dispute, especially inflammatory posts, create challenges, such as increased e-discovery costs, delayed resolution through more complex discovery demands and motion practice, potential harm to the poster’s substantive legal position, and undermining the parties’ relationship and/or reputations. Inform clients that inflammatory posts reduce the likelihood of resolving the matter quickly.

Don’t forget third parties! Remind the client that discussing attorney advice with others can lead to the loss of attorney-client privilege. Also, clients sharing the terms of a confidential settlement may be putting the settlement at risk. Tell clients that social media posts by family members or others discussing this information may be evidence the client is talking out of school.

Trigger tranquility. Repeatedly remind clients of the harms of thoughtless communication. In situations where the parties or others are likely to communicate in an unhelpful manner, the following ADR processes focused on addressing party social media practices can reduce risks and induce client caution.

1. 1. Employ a conflict coach. A conflict coach is a certified professional who helps a client effectively “vent” to the coach. Then the coach and client reframe the client’s position so that it can be better appreciated and understood by the recipient. The coach does not directly assist the client in the underlying dispute. The coach is closer to a filter; helping the client see matters in a more neutral manner. A coach also identifies a client’s “triggers” (usually known by their opponent) and provides the client with tools to diminish or eliminate a triggered response, thereby preventing a potential opponent’s thrill of setting off the client.

      A coach cannot affect posts made by an opponent or others so additional tools may be necessary.

2. 2. Engage a mediator. Neutral mediators enable disagreeing parties to have a constructive discussion in a confidential setting. They work with all parties and their attorneys to identify the issues, review positions, evaluate those positions and find a path forward.

      During a dispute, when social media posts are harming one or both parties, the parties can agree to bifurcate party social media practices from the underlying dispute and mediate problems arising from those practices.

      There are two key benefits of using mediation. First, the parties build confidentiality into their process because mediation is inherently confidential. For example, at the time of contracting to mediate, the terms and processes to be used in the mediation will be agreed upon. The mediator will likely require the parties to agree they will not discuss or share information about the dispute or what is said in the mediation with others not present. As a result, parties can experience that not speaking (or posting) has benefits as well as see that the opponent is also making an effort to resolve the dispute.

      Second, the mediator can suggest actions that prevent relevant future posts. For example, the mediator might get assurances from the parties that they will not post about the dispute for a short period.[9] Or the parties may agree to actively discourage third parties from posting about the matter.[10] The mediator can also explore with both parties’ immediate social media problems such as how posts may reduce business generation, create emotional distress, etc.

 

3. 3. Choose arbitration. If the parties are intractable or social media use by the parties or others creates a major hindrance to resolving the underlying dispute, the parties may choose arbitration of social media issues. An arbitrator works to resolve disputes quickly, address a recalcitrant party and may order a party to remove prior posts.>

      Arbitration of social media disputes must be carefully designed. Generally, arbitrators are limited by the powers given in an agreement, cited rules, statutes, and the understood sense of fairness. Defining what powers an arbitrator might possess (such as directing removal of a post or setting damages), how parties are to act across multiple social media platforms, as well as ensuring the First Amendment is respected and the arbitration process is operating at the speed of social media may be difficult.

 

Conclusion

Remind clients of the real-world harms – as demonstrated by Amber Heard and Johnny Depp. Use the techniques above to educate difficult parties on how discretion and collaboration are better than “winning” social media. These shifts will help you and clients address their dispute by triggering tranquility, not outrage.

[1] Taylor Lorenz, Who Won the Depp-Heard Trial? Content Creators That Went All-In, Wash. Post, June 2, 2022, https://www.washingtonpost.com/technology/2022/06/02/johnny-depp-trial-creators-influencers.

[2] Id.

[3] Inga Parkel, Johnny Depp: Actor’s Popularity Drops After Winning Amber Heard Trial, New Data Says, The Independent, June 10, 2022, https://www.independent.co.uk/arts-entertainment/films/news/johnny-depp-amber-heard-popularity-trial-win-b2098395.html; Emma Nolan, Amber Heard Ranks Higher Than Vladimir Putin on Most Hated People List, Newsweek, July 22, 2022, https://www.newsweek.com/amber-heard-ranks-higher-vladimir-putin-most-hated-people-list-1727180.

[4] For simplicity, we will use the term “social media” going forward, but the advice herein is equally applicable to communication activities like texting, messaging, emailing, using online tools that allow comments among users, as well as other communications between stakeholders or that discuss a client’s matter.

[5] For a detailed discussion of the mechanics of preserving social media information, see Andrew J. Weinstein and Barrie A. Dnistrian, Preserving Social Media Is a Must – but How?, NYSBA Journal, May 2019. The full May 2019 NYSBA Journal is found here: https://staging.nysba.cliquedomains.com/app/uploads/2020/04/NYSBA_Journal_MAY19_WEB.pdf.

[6] Matthew Stucker, Girl Costs Father 80,000 with ‘SUCK IT’ Facebook Post, CNN, Mar. 4, 2014, https://www.cnn.com/2014/03/02/us/facebook-post-costs-father/index.html.

[7] In re Sitton, 618 S.W.3d 288 (Tenn. Sup. Ct. 2021) (attorney who advised woman, via Facebook, on how to make hypothetical murder of ex-husband appear to be self-defense receives four-year license suspension. Ex-husband saw attorney’s post and reported attorney to authorities).

[8] An attorney should consider several steps to reduce future, relevant client social media posts, including: addressing client social media practices in an engagement letter, having a staff member monitor client social media, utilizing social media monitoring software, reviewing posts before publication, and sending automated reminders to clients that social media is subject to preservation and discovery obligations. The volume, frequency, and variety of post formats (e.g. video, image, text, etc.) may make such tracking laborious. Clients should also be reminded that posts by family, friends, employees and others may be found by opposing parties or subject to discovery requests.

[9] Such a test can help refine the terms of a final non-disparagement or nondisclosure agreement.

[10] Note: third parties are unlikely to be litigants in a dispute or may be beyond the reach of a court with jurisdiction.