11 Trial Lawyer • Summer 2023 See Crowdsourcing p 12 their client said about the conditions at the client’s workplace was actually true. The problem was the client’s ex-employer had clamped down on its employees, forbidding them from talking to Channing or their team. Channing needed a whistleblower, but did not know how to find one. A new associate at Channing’s law firm suggested using social media. They made posts to Twitter and Reddit, asking that anyone who had worked at the client’s former employer contact them. It was a longshot, but they identified two former employees, and those individuals suggested four more witnesses willing to testify at trial. Valuable opinions Businesses use crowdsourcing to identify products that will appeal to their customers. For example, game manufacturer Lego hosts an “idea platform” where nearly a million Lego enthusiasts submit pictures of their Lego model ideas which are then voted on by other users. Ideas that garner 10,000 votes are then considered by Lego for production and sale as a new Lego set. An attorney can do something similar with elements of a case. For the past several decades, this has been done on a much smaller scale through the use of focus groups. Focus groups have more recently moved online, allowing for larger participant groups and easy repetition of evidence. But most focus groups are by nature expensive, and not usually very adaptive or dynamic. If done right, crowdsourcing opinions can be a nearly-free, massive focus group for a case. When Carlo graduated from law school, he ignored warnings against the risk of hanging a shingle and starting his own firm. Then he ignored more warnings about taking cases for people injured in low property damage car crashes. Now he was facing his first trial, and he was worried about whether jurors would believe his client had actually suffered the injuries claimed, given what the cars looked like after the crash. Carlo decided to find out. He posted representative photos of the cars to social media, along with a description of the injuries suffered by his client. He did not even have to ask for opinions. People started posting their thoughts about the claims, and Carlo got even more worried. Then he began to add more information. He posted that his client was only 23 at the time of the crash and worked as a clerk at the courthouse. He noticed some movement in some of the opinions in favor of his client. A few days later, he updated his post to include the fact that his client was an avid cyclist, who competed in local semiprofessional bike races. He included images of his client crossing the finish line, along with some race results showing his client near the top of the table. More opinions were posted that gave Carlo hope that his trial was not over before it started. He continued this process, honing his arguments, learning which swayed people his way and which did not. On thing Carlo did not have was dash cam or other video of his crash. When I first started practicing, it would have been unheard of, bordering on inconceivable, that there would be video showing a crash or other incident forming the basis of a claim. Today, if an attorney really investigates, it may be more likely than not that video does exist. Dash cameras placed by motorists are ubiquitous. Many of the newest cars continuously record video from multiple cameras mounted on the car, which then preserve the footage if sensors on the car detect a collision or other trigger event. Most of the larger trucking companies equip their rigs with cameras facing forward and at the driver. Note that requesting that this kind of data be preserved and then produced by defendants should be regular practice in most cases. Surveillance cameras are also common both in and on commercial buildings, capturing what happens in the building, and what might be happening on nearby roads. It takes resources to track down this kind of footage, but if it is important to a case, it may be worthwhile. The investigators I use always search the area around the incident for cameras that may have captured key evidence, and approach businesses and building owners about obtaining relevant footage. Think, for example, how valuable video of a drunk driver being overserved can be in a dram shop case. If information is needed about what those cameras captured, an attorney could imitate what a local police department might do through posting images of car thieves or suspects stealing packages from a porch, asking the community if they recognize the perpetrator. Social media users dedicated to identifying people involved in the January 6 insurrection also used this approach. An attorney searching for a hit and run driver or witnesses to a crash could do the same thing. I know of cases where dash cam or other surveillance footage has been posted to social media to gauge the reaction of viewers. In a case involving an allegedly defective autonomous driving system, footage showing a crash that occurred while the driver was relying on the car’s autonomous driving technology was posted to YouTube and TikTok. You are likely already using crowdsourcing and not know it. Social media can be a useful inquiry tool.
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