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The Internet is profoundly affecting the practice of law, just as it is other businesses. Deal documents fly through the ethernet to facilitate and accelerate complex mergers and acquisitions. Many courts and administrative agencies now allow filings by e-mail. Some judges issue rulings by e-mail. Documents and testimony used in some cases can be downloaded from the Internet. Most firms have Web sites that often are used to advertise their expertise, publicize victories and even argue certain issues to attract clients. Many expert witnesses who frequently appear at trial also have Web sites to self-promote as well as to argue their points of view on their favorite subjects. And litigants themselves — whether corporations or individuals with a cause — often have Web sites. The quick dissemination and easy accessibility of information and viewpoints via the Internet is ideal in most contexts, except perhaps in a trial setting. The ever-increasing use of the Internet can threaten the delicate balance between the free speech rights of trial participants and a litigant’s right to a fair trial. A party in any case, criminal or civil, is entitled to a fair trial. To ensure a fair trial, the U.S. Supreme Court recognized long ago, in Sheppard v. Maxwell(1966), that a trial court may proscribe extrajudicial statements by any trial participant, such as a lawyer, party, witness or court official. A trial participant’s First Amendment speech rights may be trumped by the right of all parties to a fair trial where there is a reasonable likelihood that statements could prevent a fair trial, as seen in other U.S. Supreme Court decisions, Dow Jones & Co. v. Simon(1988) and United States v. King(2000). Where an expert, a firm or one of the parties to a case uses a Web site that they control to voice personal views during a trial, the likelihood that these statements could prevent a fair trial is heightened. Postings on a Web site may be far more polemic and inflammatory than news reported through the filter of the media. A juror, or potential juror, need only type the name of an expert or a party into an Internet search engine to have immediate access to his Web site. By accessing such information, a juror may be exposed to documents and opinions that otherwise would not be admitted at trial, thereby stripping the court of its ability to control the evidence presented to the jury and its ability to preserve the opponent’s right to a fair trial. PROPAGANDA TOOL? Several courts have determined that an order prohibiting certain extrajudicial statements by trial participants was necessary to ensure a fair trial. In a recent case in District Court No. 5 in Jefferson County, Colo., the trial court entered an order prohibiting extrajudicial statements concerning the case by any trial participant — and specifically targeted statements on Web sites that the parties or their counsel or their experts controlled. In Ballinger v. Brush Wellman Inc.(2001), the court found that this order was necessary in light of the Web site maintained by one of the plaintiffs’ experts on which the expert posted numerous documents that had not been admitted into evidence but that viewers could download from the site. The Web site also contained many biased opinions of the expert relating to witnesses, the claims and defenses, opposing counsel and the judge himself. Because the easy accessibility of these statements during trial could have dramatically affected the defendant’s ability to a fair trial, the court’s order was necessary. The expert was not just an ordinary citizen exercising his First Amendment rights on the Web; he was a key witness hired by one of the parties to provide supposedly impartial testimony for the jury on a variety of subjects. By seeking to be qualified as an expert by the court, he had to abide by the court’s rules. His Web site could be readily accessed not only by typing his name into a search engine, but also by typing in the product at issue in the case. The court was justifiably concerned that the “intemperate” materials on the site could undermine a fair presentation of the evidence at trial. The defendant’s and the plaintiffs’ counsel had to alter their own Web sites during the trial since those sites presented their particular viewpoints concerning some of the issues to be decided by the jury. The role of the Internet will no doubt continue to expand into everyday practice, and collisions between free speech and other rights are sure to multiply. More discovery materials and testimony are likely to be available on the Internet, more lawyers and parties and experts are likely to use Web sites as vehicles to promote their respective views, and the public (including jurors) will increasingly rely on the Internet for information. This constant, easy and direct access to the Internet — and its use as a propaganda tool — should be a concern to lawyers and litigants seeking a fair trial. As in many other areas, new rules will have to be developed over time to take into account the dramatic presence of the Internet. In the short run, lawyers can and should be proactive with the courts in shaping the way trial participants can use the Internet in a particular case to protect their clients’ fair trial rights. Sydney McDole is a partner in and Brett Ross is an associate with the Dallas office of Jones, Day, Reavis & Pogue. Their e-mail addresses are [email protected]and [email protected].

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