John Browning ()
On June 30, the Law Tribune published an editorial “A Troublesome Opinion Regarding Juror Internet Research,” in which it lamented recent American Bar Association Formal Opinion 466. This opinion concluded that there was nothing wrong with a lawyer reviewing a juror’s internet presence as long as the lawyer does not initiate contact with the juror (such as by sending him or her a “friend” request).
The editorial found such a practice “troublesome,” invasive of jurors’ privacy, and likely to make prospective jurors even more reluctant to show up and perform their civic duty than they already are. But here’s a news flash for you, direct from a trial lawyer with over 25 years’ experience who is also the author of three books and numerous articles on the impact of social media on the law: it’s not only permissible for lawyers to engage in such online research, it may be malpractice if they don’t.
You see, in August 2012, the ABA adopted certain changes to its Model Rules of Professional Conduct, including perhaps the most fundamental of them—Rule 1.1, governing an attorney’s duty to provide competent representation. Now, it’s no longer enough for lawyers to merely keep current on the latest statutory developments and other changes in their particular area of practice. In order to be competent, lawyers have to be conversant in the “benefits and risks” associated with relevant technology—no more analog lawyering in a digital world.
Moreover, courts across the country have been moving toward demanding a higher degree of technological competency of lawyers, particularly in the age of social media. Courts have found that due diligence includes a “duty to Google,” that not following leads about potentially exculpatory admissions on Facebook can constitute ineffective assistance of counsel, and that letting one’s client delete those damaging tweets or Instagram photos can constitute spoliation of evidence. Courts in at least eight countries (including several state and federal courts here in the United States) allow parties to be served with process via social networking platforms, and a party’s online activities can impact jurisdiction in a case. In an age in which over 72 percent of adult Americans have at least one social networking profile, and in which people share more information online than ever before, lawyers in virtually all practice areas have found sites like Facebook to be digital treasure troves of information.
And the process of jury selection, or voir dire, is no exception. Even before the ABA’s Formal Opinion, ethics opinions from the Oregon Bar, the New York City Bar, and the New York County Bar concluded that there was nothing wrong with a lawyer researching an actual or prospective juror’s social networking profile or other online presence. Appellate courts across the country, including those in New Jersey and Kentucky, have given their tacit blessing to this practice. The Missouri Supreme Court even adopted a rule creating an affirmative duty for lawyers to perform internet research into a prospective juror’s online activities (including their litigation history) as a prerequisite for later challenges to that juror’s service or an adverse verdict. This practice can avert miscarriages of justice; in one of the first tests of Missouri’s rule, agricultural giant Con Agra successfully challenged a juror who lied about his beliefs during voir dire, only to be dismissed after a search of his Facebook profile revealed all sorts of anti-corporate rants and other content contradicting his statements during jury selection.
“Voir dire,” after all, means “to speak the truth,” and while panel members may find it somewhat invasive to answer questions about their views during the selection process, trial lawyers need to be as sure as possible if Juror No. 7 is a good fit or not. Secure in the perceived anonymity of the internet, people often reveal more about themselves online than they might in open court, and this information can be vital to an intrepid lawyer.
In some real-life examples, lawyers for an African-American defendant could infer a level of racial tolerance from a potential juror whose Facebook profile included photos of her interracial relationship, while lawyers litigating a workplace injury that occurred in a tight, confined space elected to keep one panelist on the jury after his Facebook profile revealed his membership in a support group for claustrophobics. That empathetic person wound up serving as jury foreman, and the result was one of the largest personal injury verdicts in the county. In a death penalty case, prosecutors heard a prospective juror say one thing about her views on capital punishment only to have an online search reveal her authorship of an op-ed piece espousing an opposite stance. Trial lawyers and jury consultants are more concerned than ever with what would-be jurors are tweeting and posting, and lawyers on both sides of high profile cases like the Casey Anthony and George Zimmerman trials used social media to weed out unfit jurors.
There’s another reason why lawyers need to do some online digging, and that is what one Reuters news service article termed an “epidemic” of online juror misconduct. Federal courts and many states have revised their instructions to potential jurors to address things like venturing online to research a case or communicating about the case on social networking sites. Across the country, there have been costly mistrials and overturned verdicts caused by the “Googling juror;” one capital murder conviction was set aside by the Arkansas Supreme Court in 2013 after it was revealed that a juror had been tweeting from the jury box during deliberations.
When the integrity of a judicial system that has stood for centuries can be compromised with the speed of a search engine, it is incumbent upon lawyers to report such misconduct. Allowing lawyers to investigate what prospective and actual jurors are sharing openly with the world anyway on Facebook and Twitter provides an additional level of protection against misconduct that can jeopardize case results and waste valuable court resources.
Trial lawyers value the citizens who show up for jury duty and don’t want to make their service any more unpleasant than it has to be. But that goal takes a backseat to our duties to our clients and to the justice system.
John G. Browning is a partner in the Dallas office of Lewis Brisbois Bisgaard & Smith, where his practices focuses on civil litigation in state and federal courts. He is the author of three books on social media and the law and has written numerous articles for legal periodicals and law reviews on social media’s impact on the legal system.