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Tackling juror Internet use

Concerned by the spread of the Web into jury deliberations, trial lawyers are urging judges to pull the plug on plugged-in jurors. It’s no longer enough for judges to warn jurors not to talk to friends or read newspaper articles about a trial. According to trial lawyers, judges have to tell jurors not to e-mail, blog, tweet, text or post anything to their Facebook or web pages about a trial. And jurors must be instructed not to use the Internet to look up information about witnesses, defendants, lawyers or medical terminology that’s being discussed in a trial. Anthony Tarricone, a partner at Kreindler & Kreindler in Boston and current president of the plaintiff lawyers’ group American Association for Justice, says that juror instructions need to be updated to reflect the realities of the electronic age. “Attorneys must anticipate the use of the Internet, Facebook and all the other resources in cyberspace, and help the judge to ensure that 21st Century instructions are given to address 21st Century technology,” he says. In several recent cases, jurors’ Internet use has upended trial outcomes: • A U.S. District Court judge in Florida declared a mistrial in a criminal case after nine jurors admitted they had been conducting Internet research on the drug trial they were assigned to. • A building materials company and its owner are appealing a $12.6 million verdict against them in Arkansas, alleging that a juror posted messages about the case on Twitter.com. The motion seeking a new trial claims that the juror sent eight “tweets” about the case over his cell phone, including one describing what “Juror Jonathan” did today: “I just gave away TWELVE MILLION DOLLARS of somebody else's money.” Ken Broda-Bahm, a senior litigation consultant at Persuasion Strategies in Denver, says that there are two Internet-related juror problems: “One is jurors researching over the Internet, and the other is jurors broadcasting – twittering or updating their Facebook pages.” Many jurors don’t realize that they are violating the ban on communicating about a trial when they tweet or text. “There’s a whole generation of people for whom twittering is as natural as breathing,” Broda-Bahm says. Judges have to be “very clear,” he says, “and tell jurors that this notion of not talking to anyone means not communicating with anyone through electronic means, like through twits or Facebook updates.” The same goes for researching information about a trial, Broda-Bahm adds. So when a judge tells jurors not to independently research a case, the admonition has to be explicit and include Googling at home. Tarricone suggests that lawyers go further and be proactive with their clients, asking them to consider removing any websites, Facebook pages or blogs to ensure that jurors don’t have information that is not introduced into evidence during trial. Broda-Bahm advises attorneys to ask jurors either during voir dire or with supplemental questionnaires whether they have a website or public presence on the web, such as a blog. You shouldn’t necessarily strike jurors for that reason, but it will give you valuable information about their level of Internet sophistication. And while jurors’ Internet expertise can sometimes lead to problems, it also suggests an approach trial lawyers can use to pique jurors’ interest. Trial consultant Richard Gabriel recommends using video technology during expert testimony and opening statements to simulate an actual web search. “That makes it easier for jurors to follow, because that’s how they do research,” says Gabriel, president of Decision Analysis in Los Angeles. Old story To many lawyers, jurors’ online chitchat and Internet investigations are just modern illustrations of an age-old courtroom problem. “The subject itself is an old subject: You can’t learn information outside the courtroom about the case,” says Lewis S. “Mike” Eidson, a veteran personal injury lawyer and partner at Colson, Hicks, Eidson in Coral Gables, Fla. “That’s why we have rules of evidence – to make sure everyone is treated the same, and to make sure that the evidence you make your decision on is the evidence you hear in the courtroom,” he adds. Anne Reed, a trial lawyer and jury consultant at Reinhart, Boerner, Van Deuren in Milwaukee, Wis., and author of the Deliberations blog, suggests that attorneys and judges use old-fashioned courtroom expertise to address juror Internet abuse. “When this comes up for the first time for judges or lawyers, they often assume that they don’t know what to do because this is new,” she says. “But if any judge or lawyer takes a minute to think about what has happened, he or she will see we have a lot of experience – literally centuries – in dealing with what happens when jurors either communicate inappropriately or get information inappropriately.” Judges who are on top of the issue are “not only telling jurors what they can’t do,” she notes, “but why they can’t do it – that it is important that jurors all have the same evidence, because that is the only way we can be sure that the parties get a fair trial.” Questions or comments can be directed to the writer at: nora.tooher@lawyersusaonline.com