Assume your jurors are on the Internet. They want to know about you as you want to know about them.
By Trisha Renaud
Jurors have always had certain itches.
Some found it hard to resist searching newspapers to see just what they weren’t being told about the case before them. Others would insist on finding a better definition in the dictionary for that legal term that had become a sticking point in deliberations. Still others simply couldn’t refrain from sharing details of the case with a friend or family member.
Now, in the era of the smart phone and BlackBerry, satisfying those itches is easier than ever. Research is a breeze on the Internet, and today’s jurors are as likely as a lawyer to be Internet savvy.
Judges now routinely admonish jurors not to research the case on the Internet, but they may want to add another admonition: Don’t blog or tweet either.
Every day, potential jurors—and sometimes sitting jurors—are blogging.
See for yourself. Search the blogs using a Google alert for the term “jury duty.” You will find jurors out there chronicling their adventures at the courthouse on blogs.
Some write of their irritation at having to rearrange their lives to show up for jury duty. Some exchange ideas with friends about ways to get out of serving. Others blog about how excited they are at the prospect of getting picked.
Once they arrive, they sometimes keep blogging live. They write about how they are herded around the courthouse in lines that remind them of grade school. They write about the hours of boredom in the jury assembly rooms. They write with great relish about where they went for lunch and what they ate. And they write about the seemingly bizarre questions they are asked during voir dire.
And some keep right on blogging—during trial.
One juror recently posted this to his blog:
“Hey guys! I know jurors aren’t supposed to talk about their trial, but nobody said they couldn’t LIVE-BLOG it, right? Am I right or am I right?!?”
Imagine if you knew one of the members of your jury pool had posted a comment like this one, written this past summer from a jury assembly room:
“Dear defendants …
“Plead guilty. Trust me, it’s the way to go. …
“In this room somewhere in the realm of 60 or so angry men and women want to go home. They are cold hearted, bored and just itching for a fight. …
“So consider the guilt plea. You’re probably guilty anyway.”
Or this one?
“I ended up getting picked for a civil case that couldn’t possibly be more tedious. A person vs. a company, and all the evidence is contract legalese blah blah blah. Bob Loblaw. They expect the trial to continue all effing week. The word ‘tax’ has already been uttered in excess of a hundred times.
“Sigh.”
One recent civil juror decided the judge’s instructions prohibited him from discussing the facts of the case on his blog, but didn’t prohibit him from describing all the players in the case, from the witnesses to the lawyers.
Then there’s the juror in Lancashire, England, who was recently booted off her panel after posting details of the child abduction-sexual assault case on Facebook and inviting her friends to post their opinions. “I don’t know which way to go, so I’m holding a poll,” she wrote. Her Internet appeal was discovered when an anonymous tipster telephoned the court.
New blogs turn up every day, while social networking sites, once the province of teenagers, are exploding in popularity. A recent poll from Pew Research Center found that the number of adult Internet users who have a profile on a social networking site such as MySpace, Facebook or LinkedIn has quadrupled in the past four years, up from 8 percent to 35 percent.
Of those ages 18 to 24, 75 percent are on social networking sites. More than half—57 percent—of people (read that as potential jurors) ages 25 to 44 have their profile posted.
Clearly, the technological times are rapidly changing for litigators. Those who don’t use the tools of the Internet to assist in selecting a jury are missing out on a wealth of information available with a few clicks of a mouse. Blogs or Facebook pages can yield valuable insights into jurors’ thinking—what’s important to them, how they feel about themselves and their life.
The biggest obstacle is finding the time for such research, since in most cases jury lists are not available until moments before the panel files into the courtroom. Absent the time afforded by supplemental juror questionnaires completed in advance, lawyers may need a trial assistant to help with simple Internet searches. Jury consultants can be invaluable in evaluating the information out there.
But what should be done about jurors who hop on the Internet or blog?
First, assume your jurors are on the Internet. As much as you want to know about them, they want to know about you, your client and your case. Make sure you know what they might find should they search.
Next, ask your jurors during voir dire if they regularly write online, whether on their own or someone else’s blog, on Facebook, MySpace or any similar social networking site.
No lawyer would hesitate to ask jurors if they had published a book, particularly an autobiographical one. So why not ask about blogs? What are they, if not online journals published for the world to see? What is a LinkedIn profile but an online résumé?
Ask jurors about the content of their online postings. What’s the name of their blog? What do they write about? Have they written anything about their feelings about jury duty?
Ask the judge to help jurors understand why they can’t read—or write—on the Internet. Simply telling jurors isn’t always enough. Judges can help by crafting instructions that explain why: that court rulings in this case, as in every case, circumscribe how trials should proceed and what evidence should be presented, and all are designed to ensure a fair trial. When jurors undertake independent research, they may potentially bring irrelevant or prejudicial or even inaccurate information into the process that, despite their best efforts, might impact the fairness of the proceeding. Similarly, judges could explain that when jurors blog about the case during trial, they are not only crystallizing their own opinions prematurely, they are effectively engaging in a conversation about the case.
Monitor the Internet during trial. Most jurors follow the rules, but there are always exceptions. If one of your jurors is posting about your trial, you need to know.
A recent civil case serves as a good example. No doubt, the lead plaintiff’s attorney would have wanted to know that a blogging juror was describing him as “The Pacer” and writing that he was boring and has a “surly grandpa look.” The juror described the lead attorney’s associate as the “Sad Puppy Face” who looked like he “just peed on the carpet and knows he is [in] trouble.”
And if you were the criminal defense attorney and this was one of your jurors, you’d want to know about this juror’s blog posting:
“I’m still a little surprised that I was picked though. I’m hoping it’s interesting (although, I’m not sure it will be). I wish I could knit during (I don’t think I can). And I have no idea how I’m going to sit still, in one place, all dang day. Oh, and the defendant scares me.”
This article is reprinted with permission from the Feb. 13, 2009 issue of the Fulton Daily Report © 2009. Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
