Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: May 1, 2016

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gavelThis may come as a surprise (not) but jurors often decide court cases on emotional factors. Jurors are people, not robots. Successful trial lawyers pay a huge amount of attention to the emotional impact of the information shared with jurors.

What better way to control the emotional side of a court case than by 1) selecting jurors likely to be sympathetic to your client; and 2) learning about the jurors and pitching individualized messages to jurors?

How common is such behavior? Is it ethical?

Social Media in the Federal Courtroom

The Federal Judicial Center (FJC), a government agency charged with education and research in the federal court system, release a report titled Jurors’ and Attorneys’ Use of Social Media During Voir Dire, Trials, and Deliberations.

Most judges (255 out of 348) had no idea whether lawyers were looking up prospective jurors on the internet. The ones that did know lawyers were doing online research in the voir dire (jury selection) process indicated lawyers were doing everything from looking up prospective jurors on Google and other search engines to checking out personal blogs, LinkedIn profiles, Twitter posts, public Facebook posts, etc. In other words, anything that’s available online.

Only 5% of judges explicitly permit lawyers to use social media during voir dire. 25% forbid the practice; 70% don’t say anything about it one way or the other.

Judges who forbid using social media in voir dire do so because of a combination of privacy concerns and logistical concerns (i.e., it could make the process take longer).

Oracle v. Google

Google and Oracle have been waging a high-profile copyright battle over Google’s use of Java Application Programming Interfaces (APIs) since 2010. The case is high-profile both because of the financial stakes — Oracle is seeking $9.3 billion in damages — and because it has implications for the way many companies use software code.

The case has been through a variety of appeals already. The case has been sent back to the federal district court. The judge, William Alsup, has a lot of concerns about the online behavior of BOTH jurors and lawyers. In a recent order he stopped short of ordering an outright ban; however, no doubt in the spirit of “don’t piss off the judge,” both Google and Oracle have agreed not to do social media research on jurors.

Judge Alsup had several concerns over the use of social media research. He was concerned about the invasion of privacy:

Trial judges have such respect for juries — reverential respect would not be too strong to say — that it must pain them to contemplate that, in addition to the sacrifice jurors make for our country, they must suffer trial lawyers and jury consultants scouring over their Facebook and other profiles to dissect their politics, religion, relationships, preferences, friends, photographs, and other personal information.

Since this is such a high-profile case, there is a lot of information (and mis-information) about the case online. The judge has ordered the jurors NOT to look up the case or the lawyers online. So another reason the judge doesn’t want lawyers looking people up online is…

the apparent unfairness in allowing the lawyers to do to the venire what the venire cannot do to the lawyers will likely have a corrosive effect on fidelity to the no-research admonition.

The judge is also concerned about improper personal appeals to individual jurors:

For example, if a search found that a juror’s favorite book is “To Kill A Mockingbird”, it wouldn’t be hard for counsel to construct a copyright jury argument (or a line of expert questions) based on an analogy to that work and to play upon the recent death of Harper Lee, all in an effort to ingratiate himself or herself into the heartstrings of that juror.

Analysis

This debate highlights the judicial challenges posed by evolving technology.

While some might think there’s something morally wrong with a lawyer snooping around a juror’s Facebook account, the lawyer also has an obligation to serve his or her client in the best possible fashion. We’re not talking about lawyers hiring private investigators to dig up information on people — all of the information the lawyers can access is publicly available.

Stopping lawyers from using publicly available information in the service of their clients is a difficult thing to demand. The information is very readily available.

The entire debate highlights one of the realities of life in the digital age: information we innocently post online can and will be used in ways we’d never consider when we post that information.