Following are excerpts from newsletters recently published or soon to be published by various sections of the New Jersey State Bar Association. These briefs represent a small sampling of the informative articles available to NJSBA section members, who also have access to back issues of newsletters online at
by logging in using their member identification number.
New Jersey Family Lawyer
Can Facebook ‘Friending’ Create the Appearance of Impropriety by a Judge?
by Ronald G. Lieberman
Judges who are Facebook ‘friends’ with lawyers or litigants should not hear their friends’ cases.
Just about everyone reading this column probably knows what Facebook is, and most probably use the social networking website. But for the few who are not familiar with or do not participate in Facebook, users create a home page or profile page, detailing personal information such as interests, hometown, relationship status, employment, and schooling. People can become friends of a user, which allows them to obtain access to one another’s profile page subject to the privacy settings. Once users have friended each other, they can see each other’s photographs, post on ‘walls’ with information, read ‘status’ updates, read and make comments, and view the user’s activities. Users are permitted to comment on other users’ comments and denote their acceptance of activities or postings by ‘liking’ a post by way of a click on a thumbs-up icon. Facebook friends can engage in online ‘chatting’ with each other by sending messages to private inboxes. Friends can also engage in instantaneous messaging.
It appears that each of these actions involves active participation by a friend and provides information above and beyond what a person could otherwise learn from a casual acquaintance. The question becomes, does a judge’s friending of a litigant or attorney have the potential to affect the public’s confidence in the legal system?
Product Liability and Toxic Tort Section Newsletter
Smartphones Can Make for Dumb Juries: Preventing Jurors From Acquiring Information Outside the Courtroom
by John B. Kearney and Christopher Corsi
My grandmother, God rest her soul, loved the phrase: “Curiosity killed the cat; satisfaction brought it back.” It is a simple truth, and an important one in this Internet age. Jurors now are empowered by their iPhone, iPad or iMac to become a one-person investigator of the matter that is being tried before them. They are accustomed to ‘Googling’ for information all day long. Why, then, can’t they do it during a trial so they understand the ‘issues’ and get to the perceived ‘right’ result?
The answer, of course, is that the Judiciary’s role is to prevent jurors from acquiring information outside the courtroom that may inappropriately sway their findings. Obviously, when jurors are reaching conclusions and making decisions based on the potentially erroneous, outdated or incomplete musings of the online community, justice is not served. While it is true that it has always been the Judiciary’s job to prevent jurors from seeking information outside the courtroom, that task has become increasingly more difficult now that every juror has an almost instant connection to information and people through smartphones, tablets and laptops.
The days of denying there is a problem are over. Stories of jurors tweeting, posting or researching issues online are becoming more common. By now, we know the endings of those stories are usually unhappy ones, involving sanctions, juror removal or even mistrial. New Jersey is certainly not immune. It has been reported that Superior Court Judge Peter Doyne, of Bergen County, recently imposed a $500 criminal contempt sanction on a jury foreman who Googled sentencing guidelines during jury deliberations and then shared that information with fellow jurors.