Litigator’s Playbook:
Using the Internet/Social Media/Sanctity of the Trial

by Jeri Kagel, M.Ed., J.D.
Trial Synergy, LLC
www.trialsynergy.com

In the last edition of this column, we explored the advantages of using and familiarizing ourselves as litigators with a variety of social media and other Internet websites during discovery and when piecing together the facts of a case. In this issue, we investigate the use of social media by jurors.

The tremendous power of social media has been demonstrated over the past few weeks, as it has ignited and sustained the non-violent overthrow of the Egyptian government, as well as the growing protests in other Middle Eastern countries. Being able to connect with each other, see and hear what is happening often in “real time,” and strategize together has empowered groups of people as never before.

Litigation has traditionally operated in a very different manner from how people make use of social media. Rather than encouraging connection, litigation emphasizes muted and limited interaction outside the courtroom. Jurors are sequestered, strictly admonished to refrain from discussing the case, and directed to avoid research or attempts to obtain information outside of the evidence presented at trial.

These restrictions are legitimate. For a host of reasons, jurors should only consider information introduced as evidence at trial. Witnesses must be able to be cross-examined about evidence jurors will consider. Trials must be managed in a predictable fashion, so that all parties in all trials are treated consistently and fairly.

Allowing jurors Internet access during trial permits them to obtain and share information in ways potentially more unpredictable than even the unsanctioned sharing of information in the past. Before, if jurors talked to people, read newspapers or even watched TV, they had some limited ability to ascertain biases. Now, jurors may get information over the Internet and through social media websites without knowing the identities or the reliability of those with whom they are communicating. Discerning authenticity of information is essentially impossible. Using the Internet while serving as a juror taints what we have always considered to be the very essence of a fair trial.

To that end, we continue to try to keep jurors away from their cell phones, smart phones, iPads, tablet PCs, etc., during trial, and disconnect them from the Internet and the abundance of information it provides. Jurors are voir dired about their Internet use. They are instructed to refrain from such use. Their cell phones are taken away from them in the courthouse. They are held in contempt for using them, and mistrials have been declared on this basis.

During a trial, we are taking away tools that jurors rely on – just as we rely on them. As the use of technology increases, maintaining the cloistered courtroom environment the legal system has always deemed necessary to ensure fairness will become increasingly difficult. Thus, as litigators, we must become more creative in managing and operating trials. What the future holds in this regard is anyone’s guess.

In the meantime, we try to minimize jurors’ use of the Internet and social media, hoping to limit any potential damage its use may cause. Jury instructions and voir dire are the tools we have today.

One very good article about jury instructions by the American College of Trial Lawyers is titled Jury Instructions Cautioning Against Use of the Internet and Social Networking can be found here.

Information about voir dire relating to social media and use of the Internet is all over (of course!) the Internet. Google some combination of the words social media, Internet and voir dire and you will find lots of information. If you’ve got some specific concerns about your case, call me and I’ll be happy to make some suggestions.

One catch-all sequence of questions you might consider asking potential jurors, regardless of whether you have a criminal or civil case, goes something like this: “The judge has admonished all jurors not to use the Internet and [whatever additional words used by the Court]. Do you understand the importance of that order? Would you be willing to let the court know if you think someone has used a cell phone or gotten information about this case on the Internet at any point during this trial?”

Litigation may be entering a new world of problems and opportunities as using technology becomes more and more prevalent and information easier and easier to obtain. It is an interesting dilemma. What do you think?