Commercial Litigation and Arbitration

Jury Trials in the Internet Era

Jurors, like everyone else, overwhelmingly use the Internet. They have access to information, however dubious, on the subject-matter of the case, the parties, the lawyers, the witnesses and even the evidence. I attended an excellent program at the Annual Meeting of the American College of Trial Lawyers on Saturday, October 9, 2009, on this subject. Some take-aways:

1. Jurors have access, through Pacer and, often, blogs, live journals and search engines, to motions -- including motions in limine -- orders and opinions in the case. Making a motion in limine must be carefully considered. If you win, you may be perceived hiding the truth (even though precisely the opposite is the true purpose). If you lose, you tried to do so. Same consideration for Daubert motions. The opinions that may result from dismissal and summary judgment motions raise similarly troublesome issues.

2. The moment you distribute a jury questionnaire or begin voir dire, the Googling may start. If a meaningful instruction is to be given by the Court, and if it is to be effective, it must be given then.

3. The most meaningful kind of instruction may be one that stresses that Court rules are designed to insure that only reliable evidence is considered -- and, if the rules are ignored, the whole case may have to be tried all over again. The example of the 2-1/2 month Florida federal trial that was dismissed for juror Googling is a potentially potent example.

4. If you are precluded from meaningful voir dire, as is common in federal court, you have the Internet at your disposal to learn about the jurors or venire panel you have.

5. Your website sets the image the judge and jury will have of you. If you are proclaiming a past win against overwhelming odds, consider whether a juror might interpret it as a claim that you were less than candid with a prior jury.

6. Google every party and witness. You have to assume the jury will, and you have to deal with it.

7. If your client has a website or blog, assume that this will be known to the judge and jury. Consider whether it would be sensible to print out or electronically store a complete copy of anything potentially inflammatory, and shut it down.

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