March 1, 2011

Jurors and the Internet: Time to Ask Some Pointed Questions

It has been widely reported that jurors’ cyber-surfing has wreaked havoc in the courtroom, with mistrials, appeals and overturned verdicts at record levels. Though largely the result of jurors’ chatting online about the trials on which they are serving, even jurors’ seemingly innocuous web expeditions have stopped trials in their tracks. Earlier this year, a judge in Florida declared a partial mistrial and threatened a juror with charges of criminal contempt after she was found to be conducting online research about head injuries during a capital-murder trial.

As judges grapple with the myriad complexities involved in keeping jurors off their Smart Phones, iPads and Facebook pages, lawyers can help mitigate the damage. Voir dire is a good place to start. In this social-networking age, trial lawyers should be routinely asking members of the jury pool whether they have Facebook accounts, Twitter accounts, even blogs. When hands go up, follow-up questions should include, “How often do you check your Facebook page?” “How often do you post?” “Do you Tweet?” and, if so, “How often?” This should tell you how plugged-in your potential jurors are.

Other questions will give you insight into where they go for information: You might ask, “Do you have blogs or websites you check daily or weekly?” and “What are they?” It might also be helpful to find out how they feel about Wikipedia – do they trust it as a source of information? And you might want to ask how often they Google. An individual who spends hours Googling and YouTubing may need to be reminded in no uncertain terms that trolling online for information relevant to the case is off limits.

As social-networking options evolve, trial lawyers should stay abreast of the latest forums so you not only know how to pose questions, but also how to conduct research. After all, ten years ago, no one would have needed to ask a juror if he Tweets. Today it’s a perfectly reasonable question.

If a potential juror shares that he has several blogs of his own, a few favored blogs on which he posts regularly, a couple of Facebook accounts he checks dozens of times a day and a Twitter account that keeps him hopping, it’s possible that he would ignore a judge’s instruction not to post anything about the case or not to do online research, even if said juror has the best of intentions. It’s just too pervasive. It’s akin to asking him to lock himself in a room with no windows for what could be a month or longer.

By no means is this post meant to suggest that every potential juror with an active social-media life be banned from serving on a jury. Increasingly, that runs contrary to the goal of selecting a jury of one’s peers. On the other hand, as a trial lawyer, it is your job to know what you are dealing with. Not only will this help you in jury selection, but also in how to present information to the jury once the trial is underway. That is, assuming you realize that at least some jurors may still log on.

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November 10, 2010

Why You Need to Know Your Jury

Whatever your opinion about controversial filmmaker Michael Moore, he did recently offer some unwittingly sage advice to trial lawyers everywhere: He reminded us why it's important to conduct juror research early and often. Last week, a judge in New York dismissed a juror in the final throes of a case against banking giant Citigroup, after it was discovered that the juror was listed in the credits of Moore’s 2009 documentary that berated Wall Street and the banking industry. Citigroup ultimately prevailed in the case but the question of the biased juror made for an awkward, if unavoidable, situation.

When reached by Bloomberg News for comment about the judge’s decision to remove the juror, Moore, who said the juror didn’t work on the film, added, “You’ve got to feel sorry for Citigroup. They’re paying all this money to their attorneys and they didn’t even bother to Google her ‘til last night.”

The filmmaker may have been too severe. Solid information about jurors' biases is generally hard to come by, even when online research can be done during voir dire. What’s more, it is not known how this juror answered questions during voir dire or how cleverly she hid any biases up to that late stage in the trial.

It’s also important to point out that Citigroup’s lawyers were wisely attentive to this juror’s behavior during the trial and that they smartly took action immediately upon sensing a subtle change in her demeanor. As the judge commented after deciding to dismiss her, she answered questions in a manner that struck him as deceptive. She may well have withheld important facts and biases just to be seated on the jury.

That said, the incident emphasizes the cardinal rule of persuasion: know your audience as well as you can. We have Michael Moore to thank for the reminder.

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September 25, 2010

Voir Dire and the Internet

With more and more courthouses providing easy Internet access to attorneys, it seems you now have no excuse for poor voir dire preparation. According to the New Jersey Law Journal, an appeals court in New Jersey has ruled that it’s perfectly fine for trial lawyers to bring their laptop computers to court and Google prospective jurors at the counsel table. The ruling overturned a trial judge’s decision to force a plaintiff’s counsel to turn off his laptop computer because it gave him an advantage over his less tech-prepared adversary.

In overturning the trial judge’s ruling, the court pointed out that just because plaintiff’s counsel “had the foresight to bring his laptop computer to court and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of fairness.” The wireless Internet service, the court reasoned, was available to both sides equally.

There are at least two points here to keep in mind. First, take your voir dire seriously. Make use of every opportunity you have to get to know the candidates in your jury pool. This entails asking good questions that uncover their leanings and predispositions, reading facial and body cues, and, especially now, researching each potential juror – using all the information that is available to you in the public domain. You never know what you’ll find. With so many of us broadcasting our political leanings, tastes and habits online, trial lawyers can’t afford to ignore the Internet. Second, stay current in all the technology that’s out there. And be prepared to use it to your advantage. Today it’s Google with Wi-Fi access. Tomorrow, who knows?

But always remember that innovative voir dire techniques must be consistent with ethics and professional responsibility. Moreover, your voir dire must also conform to the practices within the jurisdiction and court in which you are trying the case.

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July 22, 2008

25 Greatest Legal Movies

If you're looking for a good movie to rent this summer, check out this list of the "25 Greatest Legal Movies" from the August 2008 issue of the ABA Journal. It includes classics like "To Kill a Mockingbird", "My Cousin Vinny", and "Judgment at Nuremberg." The accompanying article makes the valuable point that trial attorneys often face jurors whose perceptions of the legal system have been influenced, in one way or another, by popular culture. Whether based on fact or fiction, these perceptions matter. And the very best legal films, even if they do turn on untenable plot points, offer valuable lessons for litigators. Who couldn't learn a thing or two about style from watching Gregory Peck in "Mockingbird" or Joe Pesci in "My Cousin Vinny"? Not that anyone should ape Peck's gravitas or Pesci's Brooklyn grit, but the marriage of good storytelling and engaging rhetoric that one finds in such classics is a quality worth striving for.

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