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By Peter Hayes
A former smoker was called for jury duty in a wrongful death suit against R.J. Reynolds and Philip Morris.
Four days into the trial, the tobacco companies discovered social media posts the juror made referring to cigarette companies as “slaveholders” and “leeches.”
Those comments seemed to contradict the juror’s assertions that he could hear the case fairly.
But the court denied the tobacco companies’ motion to dismiss the juror, and the jury ultimately awarded the plaintiffs $18.6 million. That ruling was upheld last month on appeal over a strong dissent.
The case illustrates the value of researching jurors’ social media posts early in the trial process–during jury selection–to look for potential bias.
Plaintiffs and defense counsel agree about the usefulness of poring over Facebook, LinkedIn, and similar web postings especially in preparation for complex and lengthy trials over toxic torts and defective products.
Such digging, they say, is becoming standard litigation practice and attorneys can be setting themselves up for serious problems if they’re not diligent about it.
“Social media research of jurors is becoming more prevalent as social media usage itself increases, and the need to conduct some level of internet juror research is becoming the standard of care,” attorney Sharon Stuart with Christian & Small in Birmingham, Ala. told Bloomberg BNA.
Stuart works on complex commercial, insurance and product liability litigation.
Some judges and law professors, however, have raised privacy and other concerns over such searches, saying it’s already hard enough to get jurors to serve.
“My main concern with using these additional, on-line resources to obtain information on jurors is that it continues to make it more and more unpalatable to serve as a juror,” Professor Melanie Wilson at the University of Tennessee College of Law in Knoxville, Tenn., told Bloomberg BNA.
“Jurors are under significantly increasing scrutiny, making service costly; yet, we want and need jurors for our system of justice,” she said.
And how far attorneys may go in their online sleuthing is still being mapped court by court. But at least one line drawn in many jurisdictions is that “friend” and similar requests are out of bounds.
A total of 1.5 million Americans serve as jurors each year in state courts and tens of thousands more serve on federal juries every year.
In fact, more than a third of U.S. citizens will sit on a jury at some point in their life.
When called for jury duty, most of us expect to be questioned about our ability to be fair and objective in deciding a case.
Some might be surprised to learn, however, that our social media posts are fair game too.
These can reveal a wide range of personal information, from political beliefs to religious affiliation to medical issues, especially as more potential jurors are posting more data about themselves online every day.
Social media use, including Facebook, Twitter, LinkedIn and blogs, skyrocketed from 7 percent of American adults in 2005 to 65 percent in 2015.
But a minority of courts have barred or limited social media research on jurors, citing, among other matters, privacy concerns.
“There’s an obligation to do basic research,” attorney Lora Brzezynski with Dentons in Washington told Bloomberg BNA.
If they fail to do so, she said, “counsel may be deemed to have waived potential bias arguments.”
“But some judges don’t like social media searches because they see it as an invasion of privacy,” Brzezynski said.
Brzezynski is a trial attorney who focuses her practice on commercial and business disputes, intellectual property litigation, and internal investigations.
A notable example of judicial concern over online juror research is Oracle America v. Google, No. 10-cv-3561 (N.D. Cal).
In that case, Judge William Alsup in the Northern District of California asked the parties in March 2016 to “voluntarily consent to a ban against Internet research on the venire or our jury until the trial is over.”
The judge cited three reasons for the ban: allowing research on jurors might impel them to conduct internet research of their own on the suit “despite the no-research admonition;” it would allow pandering to particular jurors; and it would invade the jurors’ privacy.
While the Oracle case shows the wide discretion that judges may exercise, attorneys say the issue is not usually addressed in any orders before, or even during, trial.
“My experience is that judges don’t ask about it,” defense attorney Joseph Orlet with Husch Blackwell LLP in St. Louis told Bloomberg BNA
But, he said, “It’s still developing state to state.” So, “lawyers need to look at the ethical rules of the jurisdiction they’re in,” Orlet said.
“It’s very jurisdiction-specific.”
Looking at jurors’ social media posts isn’t a requirement, Orlet said.
“But any lawyer who picks a jury without using social media is doing a disservice to the client,” he said.
“It can tell you if you have a potential stealth juror,” Orlet said.
Orlet cited a case in which his firm represented a chemical company, and a social media search revealed that one juror had “liked” posts opposed to the company.
“We knew we had to remove that juror because he was predisposed against our client,” said Orlet who represents manufacturers in a wide-range of cases.
A dramatic example of how important it can be to do social media research before trial is State of New York v. Liang, No. 0988-2014, (N.Y. Sup. Ct.).
In that case, in February 2016, rookie New York police officer Peter Liang was convicted of manslaughter in the shooting of Akai Gurley in the stairwell of a Brooklyn housing project.
Before sentencing, Liang’s lawyers moved for a mistrial, citing a juror’s Facebook posting, discovered after the verdict, that “everytime police kill an unarmed person they bring this country one step closer to a revolution.”
“If they had the information while selecting the jury, they would have used a peremptory challenge or moved to dismiss for cause because the defendant was a cop and the juror was biased against cops,” attorney Diana Manning with Bressler Amery Ross in Florham Park, N.J. told Bloomberg BNA.
Manning’s practice includes the defense of professionals against claims of negligence and breach of fiduciary duty.
In fact, Manning said, “at least 17 states have issued proclamations to lawyers saying they have an obligation to be competent with technology.”
“So at least considering whether to conduct online juror research makes sense.”
And some attorneys say that failing to engage in social media research might be falling below today’s professional standards.
“We have now gotten to the point, especially in lengthy trials involving toxic torts and other defective products, where, in my opinion, it is legal malpractice not to search social media during jury selection,” plaintiffs’ attorney Robert W. Kelley of Kelley/Uustal in Fort Lauderdale, Fla. told Bloomberg BNA.
“People are much more likely to reveal how they truly feel about something when they are protected by the semi-anonymity of social media than when they are called upon to speak in public in a courtroom full of strangers,” Kelley said.
Kelly is a personal injury trial attorney. His practice has included cases over cigarettes, medical malpractice and automotive defects.
Other attorneys agree with Kelley about the significance of social media research in certain types of cases like those involving toxic torts, product liability and consumer fraud.
Jeffrey Wagner has tried major class and other cases in these areas in federal and state courts across the country.
“Many people post information to social media regarding their experiences with consumer products,” Wagner, with Arnold & Porter Kaye Scholer LLP in Chicago, said.
“The comments range from high praise to constructive criticism to accusations of criminal misconduct,” he said. “Critically, those comments are made without any notion that the author might be called for jury service in a case involving the product about which they are posting or tweeting.”
Wagner says he’s been involved “in a number of consumer fraud/product liability trials in which potential jurors have authored such comments.”
“However, because they wanted to serve on the jury, those people not only failed to disclose their prior comments, but responded to voir dire questions with statements that directly contradicted their prior posts and tweets,” he said.
In some cases, Wagner added, “our access to those prior social media comments permitted us to demonstrate to the court that the potential jurors harbored pre-conceived opinions, were not being truthful and could not be impartial.”
Jury consultants say social media searches can reveal much more than just disparaging comments.
“Social media research is helpful in assessing leadership potential and identifying who may resist certain trial stories and themes,” Tammy Metzger with JuriSense Litigation Consulting Services in Seal Beach, Calif. told Bloomberg BNA.
“Twitter and Facebook posts can also flag argumentative jurors who may polarize the group and cause a deadlocked jury or disproportionately affect the verdict.”
“We’ll typically check potential jurors’ political party affiliation because it’s quick and easy—and because fiscal conservatives are more likely to favor the defense in toxic tort cases,” Metzger said.
But political identification alone “is not very helpful because many fiscal conservatives will follow the ‘make whole doctrine’ and fully compensate an injured party.”
“Much more information is necessary to assess potential juror bias,” she said.
“If time and resources permit, we’ll have a team search for information regarding attitudes about lawsuits, government regulations, chemicals, corporations, personal health risks, social responsibilities and other case-specific issues.”
“We’ll also check LinkedIn for medical, chemical and regulatory expertise that may make them experts in the eyes of fellow jurors,” she said.
As more online data about potential jurors is mined, a pressing question is what limits exist for such searches. Attorneys say the answer depends on where the case is being tried. Also, some borders are still being drawn.
The ABA has provided “general ethical guidance on what social media research is and is not permissible,” Stuart, with Christian & Small, said.
“However, a few jurisdictions (New York, for example) have more stringent rules about what research is permissible, so lawyers must know the rules specific to the jurisdiction in which they practice to avoid running afoul of them.”
In 2014, the American Bar Association issued a formal opinion on lawyers’ review of jurors’ internet presence.
The ABA concluded that attorneys “may passively review a juror’s public presence on the Internet, but may not communicate with a juror.”
The opinion also encourages judges and attorneys “to discuss the court’s expectations concerning lawyers reviewing juror presence on the Internet.”
“The ABA opinion seemed to answer the question—you can do passive research but friend requests are not allowed,” Brzezynski with Dentons said.
But in 2015, the New York Bar issued an opinion “that doesn’t fully agree” that attorneys can go that far, Brzezynski said.
Both the ABA and New York guidelines forbid attorneys from communicating with jurors including asking for access to non-public social media information.
But New York suggests that even an inadvertent contact with a prospective juror caused by an automatic notice that his information is being looked at may be an ethical violation.
“You have to be aware what sites alert people that you’re looking at them,” Manning with Bressler Amery Ross said.
LinkedIn, for example, sends such a notice when a profile is viewed.
“Even if it’s not improper, you don’t want to make them uncomfortable.”
Many academics agree about the importance of setting limits.
“The most obvious potential pitfalls are that attorneys will be tempted to use false pretenses to ‘friend’ someone on Facebook or otherwise access information that is not truly available to members of the public,” Professor Wilson of the University of Tennessee College of Law said.
“Or, they will make ‘virtual’ contact with a juror that they are forbidden to make in person,” she said.
Professor Ari Ezra Waldman at the New York University Law School said he’d caution about less invasive searches too.
People post things online “without knowing their postings are publicly available through a Google search,” Waldman said.
Waldman is the director of the Innovation Center for Law and Technology and director of the Tyler Clementi Institute for CyberSafety, which includes a pro bono clinic representing victims of online harassment.
“Even though the law might have nothing to say,” social media searches “might offend the user’s expectations because they’re not fully informed,” he said.
And there is a danger of attorneys using social media searches to find false reasons to exclude potential jurors from a case, he said.
“You can’t exclude a juror for discriminatory reasons like race,” he said. But a social media search “increases the likelihood a lawyer will find something to ask a juror as a pretextual reason.”
“It’s like a full-body scan,” Waldman said. “They’re likely to find something.”
But while some law professors and courts continue to express concerns over privacy, other law professors say that social media searches of publicly available information should, in today’s highly connected world, be expected.
And, if conducted properly, law professors agree that online searches of juror information are also ethical.
“We are reducing our own sense of privacy by putting things out there,” Professor Kami Chavis, director of the Criminal Justice Program at Wake Forest Law School in Winston-Salem, N.C. told Bloomberg BNA.
“If we don’t want it out there, we shouldn’t post it.”
Professor Danielle Citron at the University of Maryland Francis King Carey School of Law in Baltimore says jurors may be surprised to learn their social media posts are being researched.
“But there’s a way to look at it as a positive thing,” Citron said.
“Parties don’t need a lot of money” to conduct these searches, she said.
In this sense, she said, “the internet is the great equalizer.”
To contact the reporter on this story: Peter Hayes in Washington at PHayes@bna.com
To contact the editor responsible for this story: Steven Patrick at firstname.lastname@example.org
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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