A Boulder attorney is wading into a touchy new area of legal ethics as he champions a cybertool — YouTube — for attorneys who want to take their cases beyond the courtroom and into the court of public opinion.
John Pineau has twice put video clips of pre-trial questioning on YouTube to the advantage of his clients and to the detriment of opponents: once because of a sense of moral outrage, another time in a case that resulted in a secret settlement.
Now, in a legal arena that has yet to be directly addressed in ethics rulings, Pineau is teaching other attorneys how to add this potent component to their legal arsenal and to do it in a way that doesn't bend the rules of law.
"This is an incredible new hammer of justice," said Pineau. "It's really not understating it to say this will change justice around the world."
Legal ethics professors call it an interesting emerging component of court cases — one that needs to be examined in legal and ethical terms, and used with respect and good judgment. They say it will likely spur some new ethics rulings by circuit courts.
Deborah Cantrell, who teaches legal ethics at the University of Colorado, predicts widely differing opinions among attorneys on the ethics of what might be called YouTube law.
She said issues include weighing whether it is being used to expose a social injustice or simply to embarrass a client. She said she is less bothered by it if it is used in high-profile cases with a lot of public scrutiny rather than in garden-variety cases where the parties involved might have some expectation of privacy.
"You're going to get a lot of disagreement on this," Cantrell said. "These aren't uncomplicated issues."
Pineau became a firm believer in YouTube law after he won a civil judgment for a Hungarian-born woman against her ex-husband — who was convicted of beating her — and that man's father last year.
The case could have ended up like so many other court matters — likely overlooked by the public and largely forgotten in the reams of courthouse files. Instead, it garnered national attention because of clips of pre-trial questioning that Pineau posted on YouTube. More than 2,000 people have viewed the video on YouTube. Countless others have watched it on links in blogs, news websites and Twitter feeds.
The video has Thomas Wierdsma, the father in the case and a top executive with the government-contracting firm GEO Group, saying that it's OK to lie to the government. GEO Group contracts with Immigration and Customs Enforcement to operate detention centers.
Pineau said he posted it because he was outraged by the way the defendants tried to use the power of a government connection to intimidate his client and threaten to have her deported.
The public airing in that case has prompted the Boulder District Attorney's Office to investigate Thomas Wierdsma for possible criminal interference in his son's case. Additionally, ICE is asking questions about the video and gathering court files.
Students at Florida Atlantic University recently used the video as ammunition in a successful protest when the GEO Group attempted to get naming rights to a new stadium. Student protestors posted links to Wierdsma's deposition.
Making videotaped court proceedings public is not a totally new concept.
Snippets of the 1925 so-called Scopes Monkey Trial are posted on YouTube. It was the first trial ever covered by the then-new broadcast media. Larry Flynt's pre-trial mocking of the court system in his suit against Jerry Falwell in 1984 is posted for all to see. Under " Gates' Deposition Greatest Hits," viewers can catch a sampling of Microsoft Chairman Bill Gates dancing around questions in 1998.
In more modern times, searching "depositions" on YouTube brings up rapper Lil' Wayne and the late singer Michael Jackson, as well as a much-viewed legal brawl called "Texas-Style Deposition," which has attorneys nearly coming to blows over conference tables.
But those YouTube feeds are posted for historical value or for more modern titillation.
The way Pineau is teaching attorneys to use social media is much more focused.
"I think the way John is using this is extraordinary," said attorney John Savela, who has invited Pineau to give classes in the use of social media for members of the Boulder County Bar Association.
Pineau is teaching that it's a simple thing to shoot video footage of pre-trial questioning. He does so with a $400 camera and a tripod.
But a video of testimony taken in a pre-trial deposition is part of what is considered discovery and is not a matter of public record until after it has been filed with a court. It should not be released until after a trial, if there is one, because it shouldn't be used to try to sway a case, Pineau and other attorneys said.
"The safest way to do it is to go to trial and disclose it afterwards. You don't want to use it in any way as extortion," he said.
Beyond that, these video bombs are fair game legally to be dropped in the court of public opinion. And at times, they can bring on a different outcome than that settled by a judge's ruling.
Pineau also uploaded portions of depositions in a 2010 case that he lost in court. His client had been sued by a corporation. But after the trial, when the videos hit the Internet, the company offered a cash settlement to the client if the embarrassing videos were removed. Pineau said he can't give any details about that case. Ironically, silence is part of the settlement agreement.
The power of public pressure in court cases first dawned on Pineau in 2000 when he was part of a group of attorneys that sued the U.S. Olympic Committee over the suppression of doping results. The matter was eventually settled out of court, but the committee lost $10 million in donations after the world tuned in to a media blitz about the case.
Pineau's next aha moment came in 2009 when a Boulder woman was evicted from her home and sued by a large national rental corporation, Aimco, for sticking Easter Peeps candy on her front door. Videos about the case went viral. The value of the company's stock plummeted.
Not everyone is hitting the "like" button on attorneys' new uses of social media.
Denver attorney Edward Ramey recently filed a motion in an Aspen case seeking to prohibit a plaintiff from videotaping depositions and posting them on YouTube. The Pitkin County Court has yet to issue a ruling.
In that case, a former Aspen Skiing Co. employee sued ski company CEO Mike Kaplan for libel. The employee, who is acting as his own attorney, then announced his intention to use videotaped questioning to embarrass Kaplan and other members of his family.
"They (depositions) are not supposed to be vehicles for ridicule, harassment and attempts to humiliate a witness," Ramey said.
Attorneys say they expect pushback on the use of social media in lawsuits. It could lead to more attempts to seal records, they say, or to the redaction of certain materials in court files.
In the meantime, Pineau said he believes that social media is the way to "take the truth and make it a little more public" — to drag it out of the file rooms of courthouses and put it in front of the public.
"Once these stories are released into the wind of the Internet," he said, "they have a life of their own."
Nancy Lofholm: 970-256-1957, email@example.com or twitter.com/nlofholm