Social Media - Friend or Foe in the Courtroom?

by Robert Legaspi

There's no denying that social media has firmly rooted itself in the daily life of the average American. Every day we are inundated with the trivia, news, anecdotes, feelings, and photographs its users share through a myriad of social media sites. Whether through Facebook, Twitter, or work-related sites like LinkedIn, Americans find themselves more connected to each other than ever before. We willingly express likes and dislikes to a largely faceless and anonymous audience, all the while knowing that our musings can be scrutinized and made forever available to anyone with an Internet connection. It seems to make little difference to us that our posts inevitably become a permanent part of the Internet landscape and will expose our thoughts and experiences to scrutiny.

The impact of social media has not escaped the legal profession. It's clear that attorneys have discovered that research into a juror's social media presence can yield an abundance of information about their potential biases and experiences that might not otherwise become known.

ABA's stand on social media review

Researching a juror's social media presence is certainly productive, but is it ethical? That debate was put to rest in April 2014 when the American Bar Association's (ABA) Standing Committee on Ethics and Professional Responsibility released Formal Opinion 4662 regarding attorney research into jurors' Internet presence. The committee found that "there is a strong public interest in identifying jurors who might be tainted by improper bias or prejudice." Therefore, "a lawyer may review a juror's or potential juror's Internet presence, which may include postings by the juror or potential juror in advance of and during a trial." It can be argued that attorneys not only have the right, but also the obligation to research the jury pool's social media presence in order to best represent their clients.

The legal team can learn, or at least surmise, a person's political and religious leanings, as well as general biases, and can garner insights into his or her psychographic profile. One very good example is a 2010 case in Missouri, Khoury v. ConAgra Foods, Inc.3 The ConAgra legal team's review of an empanelled juror's Facebook page yielded evidence of anti-business sentiments. One juror was described by ConAgra as "a prolific poster for anti-corporation, organic foods" and arguably could not be fair and impartial. ConAgra moved for the juror to be excused from the panel. The Court agreed, replacing the biased juror with an alternate juror. ConAgra ultimately won the three-week trial. It's safe to say that the outcome may have been different had ConAgra not learned of this juror's pre-existing biases.

Facebook

According to the Pew Research Center's Internet Project1, approximately 71% of online adults in the U.S. have a Facebook account. Facebook users are sharing more and more information about themselves, and this plethora of data is prime reading material for jury consultants tasked with reviewing jurors' online presence. They know that social media sites are fertile ground for harvesting information that can give insight into the thoughts, feelings, and biases of a jury pool. Leanings that might not otherwise be uncovered in voir dire can be taken into account when determining which jurors to strike. Whether it's an obvious statement like "I don't trust big oil companies" or something less conspicuous, a juror's social media posts can help attorneys understand the motivational forces behind his or her point-of-view.

Twitter

It's evident that Twitter has established itself as the preferred communication tool for many Internet users. Who would have guessed that "Twitter," "tweeting," and "140 characters or less" would so quickly become a part of the American lexicon? Jury consultants have found that Twitter, much like Facebook, can prove to be a valuable source of information about jurors' thoughts and potential biases.

A quick search of Twitter would reveal that BP wouldn't want someone like Stephen Colbert of Comedy Central to be a fact finder in its Deepwater Horizon Oil Spill trial, given his incisive tweet: "In honor of oil-soaked birds, 'tweets' are now gurgles." Nor would the U.S. government want Mr. Colbert to sit on its jury in the trial of Edward Snowden, considering this tweet: "If you're doing nothing wrong, you have nothing to hide from the giant surveillance apparatus the government has been hiding."

An important value of Twitter in the context of "noise" or "buzz" about your client, or the subject of his or her litigation, lies in the ability to establish a TweetDeck to track multiple tweets in real time. TweetDeck allows you to keep track of several topics and tweets simultaneously, and also gives you the ability to filter by content and user. With an analysis of this information, jury consultants can make meaningful findings about your case based on real-time trends. Patterns can emerge that reflect on demographics, the trial venue, and individual leanings and biases.

Tweets posted during trial are another matter to consider. It's obvious why a juror's tweets about a trial in progress can have a disastrous outcome. For example, in Stoam Holdings v. Diehl4, a $12.6 million dollar verdict was appealed on the grounds that a juror tweeted during the trial. The juror's tweets included: "oh and nobody buy Stoam. It's bad mojo and they'll probably cease to Exist, now that their wallet is 12m lighter" and "So Johnathan, what did you do today? Oh nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else's money."

LinkedIn

LinkedIn has about 100 million members in the U.S. so there's a good chance that members of your jury pool have a LinkedIn account. Since LinkedIn is a career-oriented networking site, a review of a juror's profile can reveal many things that a short voir dire session may not uncover. A peek inside a juror's LinkedIn account can reveal his or her professional network, work experience, volunteer activities, military service, and any industry groups he or she supports. With a review of this data, a jury consultant can construct a preliminary profile of a prospective juror, and be better prepared to question him or her during voir dire.

Utilizing LinkedIn for juror research does have a downside. Unlike other social media sites, LinkedIn notifies an account holder when someone has viewed his or her profile. This puts the legal team in the unenviable position of having to weigh the value of LinkedIn juror research versus potentially exposing themselves as secretive and untrustworthy to the jury. Any review of LinkedIn should be done by a third party and not by a member of the legal team. Clearly, a juror who feels his or her privacy has been invaded will not be very sympathetic to the offending legal team's case.

A case in point illustrating the inherent risks of researching a juror's LinkedIn profile occurred in the case U.S. v. Bank of America Corp. et al5. During the trial, an empanelled juror was notified by LinkedIn that an attorney from the Bank of America team had viewed his LinkedIn profile. In pre-trial rulings, the Judge had specifically limited the research into a juror's Internet presence to the voir dire process. However, the defense attorneys claimed that they misunderstood the pre-trial order and continued to do research after the panel had been chosen. The aggrieved juror, who was the target of the unwanted scrutiny, complained to the Judge: "I feel intimidated and don't feel I can be objective." Ultimately, the Judge decided that the jury had not been compromised and the trial would continue with the explanation to the jury that the research was an inadvertent mistake. The Judge's decision was in line with the ABA's Formal Opinion 466: "The fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer..." The jury ultimately found Bank of America liable and the Judge ordered the bank to pay a penalty of $1.27 billion. Did the "intimidated" juror sway the panel?

Going forward

While research into a juror's social media presence can yield an abundance of information about a prospective juror, legal teams must learn to strike a balance between the importance of uncovering jurors' biases and the jurors' desire (and rights) for privacy. It will be incumbent upon the courts and Bar Associations to ensure that legal teams do not go beyond established boundaries.

1 http://www.pewinternet.org/fact-sheets/social-networking-fact-sheet/

2 www.americanbar.org/ethics_opinions.html

3 http://www.courts.mo.gov/file.jsp?id=52868

4 John G. Browning, "When All That Twitters Is Not Told", Texas Bar Journal, Vol. 73, No. 3 (March 2010)

5 http://www.law360.com/articles/476511/linkedin-search-nearly-upends-bofa-mortgage-fraud-trial