MySpace Can Kill Your Case

MySpace recently played a role in two cases, which is a sign of the growing ubiquity of social networks. The two cases highlight the importance of managing the image you portray via MySpace, Facebook, Flickr, Twitter, or whatever.

In the first case, my client was a landlord evicting a commercial tenant who ran what was supposed to be a restaurant. That is, the tenant’s lease specifically said that the space was being leased to him as a restaurant. It also required the tenant to operate lawfully and in accordance with all local and state rules, regulations, and ordnances. Leases commonly describe the purposes the property is leased for and require the tenant to comply with the law.

The tenant had a MySpace page promoting his business that we were able to use at trial to show he was operating a bar and that he was not complying with local ordinances and state laws. The over all look of the page and the comments on it demonstrated that a bar was being promoted rather than a restaurant. The numerous pictures showed young people partying and dancing on the bar. There were no pictures of the dining area that we contended was not being used. None of the pictures showed any food being served or consumed. Alcohol was evident in every picture, but not food. Florida state law prohibits smoking in restaurants or in any indoor area except bars that serve little or no food. Several pictures showed people smoking inside. Drinking outside and within parking areas is prohibited, but numerous pictures showed people hanging out in front of the bar drinking. They also showed that tables and chairs had been placed outside for this purpose. Local ordinances prohibit anyone from displaying their “anal cleavage” in an establishment that serves alcohol. This is, of course, designed to prohibit strip clubs. Several pictures showed bikini clad girls dancing on the bar and at least one of them was clearly wearing a thong. Guess what her thong allowed her to display? Just to make it better, she held a beer and a lit cigarette in one hand while she danced. The tenant’s own MySpace page made our case for us.

The second case is my last remaining personal injury case. The week after I tried the eviction case in court I spoke with an insurance adjuster who suggested that I take a look at my client’s “interesting” MySpace page. This particular client had a leg injury. Under “Interests”, she had listed “learning to surf.”

It could have been much worse. Fortunately, none of the pictures showed her dancing on her hurt leg, water skiing, snow skiing, or anything else that would allow the other side to contend that her leg wasn’t really hurt. Perhaps because her leg really was hurt? The adjuster particularly liked the comment about “learning to surf.” I pointed out to the adjuster that she was interested in “learning” not in surfing. Obviously, she didn’t surf and saying you’d like to learn could be a good way to meet cute surfer guys.

The adjuster advised me that he and the other adjusters now commonly “Google” every claimant and look for them on MySpace. Young people in particular often have these pages and they also tend to be very indiscreet about their postings. It has hurt the employment chances of many a young person as well.

Next, I’ll discuss some of the ways social networks could be used against you and how you can use them to enhance and improve your image. I won’t be talking specifically about these cases and will be talking generally.

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Arbitration and You

I sometimes run into arbitration clauses in contracts. I also have discussed arbitration experiences with other attorneys. Most of the attorneys with whom I have discussed arbitration don’t see any big advantage in it and a lot of negatives. After a long discussion with a fellow attorney, he finally came up with an explanation for the popularity of arbitration clauses among certain attorneys, especially those who draft contracts for large companies. If you’re representing a large company, you’re counting on the arbitrator or arbitration panel to minimize the damages awarded to the plaintiff. The other expenses aren’t a big deal to a large company, but the amount awarded or the relief granted is. One area where I’m starting to see more arbitration clauses are in real estate contracts. At least two real estate lawyers have told me that they routinely delete these clauses when asked to review a real estate contract.

Arbitration is a method of alternative dispute resolution. That is, it is a method of resolving disputes through a means other than traditional litigation in court. Instead of a judge hearing the case in accordance with the requirements of the Florida Rules of Civil Procedure and the Evidence Code, the case is decided by an arbitrator or a panel of arbitrators that the parties pay. The procedure and rules are supposed to be expedited. Theoretically, it is cheaper and faster than a court proceeding, but I haven’t always found that to be the case. In my experience, it has cost just as much, if not more than, trying the case in court. This is probably less true the more money is actually involved in the case.

There is at least one court case where a party asked to be excused from arbitration because they couldn’t afford the retainer for the arbitrators. The court refused to grant any relief to the consumer who could not afford to pay for arbitration of a moving bill. I have seen arbitrator bills of $17,000.00 for a one-third share of a three arbitrator panel. In another case a client paid a $3,600.00 retainer. The arbitrator kept the retainer even though we settled the case before she actually heard it.  I think both of those cases would have been cheaper to try to the local courts.

The Florida Arbitration Code which is Chapter 682 of the Florida Statutes, is probably the arbitration law that applies to most people. An agreement to arbitrate must be in writing. This can take the form of an agreement to arbitrate incorporated into a contract (i.e., an arbitration clause) or an agreement between the parties to settle their existing dispute via arbitration. A written arbitration agreement is “valid, enforceable, and irrevocable without regard to the justiciable character of the controversy.” See, Florida Statute section 682.02.

Florida’s appellate courts love arbitration and have ruled that Florida’s public policy favors the enforcement of arbitration clauses. Generally, any time there is a valid arbitration clause it will be enforced by the Courts and the matter will be referred to arbitration. However, providing for arbitration in a contract doesn’t mean that there won’t be any involvement of the courts because any disputes about arbitration are settled by the courts in accordance with the Florida Arbitration Code.