Just weeks ago, the South Dakota Supreme Court upheld the vacating of a defense verdict in a products liability wrongful death action against a seat belt manufacturer because a juror performed a Google search after receiving his jury summons (but before voir dire) and then, during a critical stage of deliberations, shared information from that search with five other jurors. The case name is Russo v. Takata Corp.1 The decision was issued Sept. 16. More about the facts and court’s reasoning later. Before readers slough this off as a precedent meaningful primarily to South Dakotans, we should ask whether the scenario is emblematic of a significant trend far beyond the boundaries of South Dakota. Is this a disappearing blip on the radar screen? Or is this a marker of what to expect in the way of likely juror behavior? We should be honest in evaluating the answers. If the vast information superhighway has no speed limits, lots of speeders and few traffic cops, how will courts police the receipt and processing of only appropriate information?
The South Dakota decision is a good stimulus for bench and bar to focus again on a phenomenon that needs attention. There may be new facts of life that trial strategists have to consider beyond urging appropriate jury instructions. The psychology of the modern juror likely is affected by how good or active a player he or she is on the Internet. Lawyers facing computer-savvy jurors may have to be more careful about the accuracy of what they say and the advocacy they unleash. After all, their representations could be verified by a juror speedily checking the assertion. So many strategies may now be in play anew—tactics that experienced litigators must revisit to assess their freshness, currency and impact.
