by: Hayes Hunt and Jonathan A. Cavalier
Use of social media to explore the histories and potential biases of a jury pool is relatively new, but it is rapidly gaining in popularity. While voir dire can be an effective tool for weeding out obviously biased jurors (and those who do not want to serve), it can be difficult to get complete, detailed and truthful answers from all prospective jurors.
Social media can help. In jurisdictions where a list of prospective jurors is provided to counsel in advance, social media screening can be performed in advance and in detail, can help expose juror bias, and can help craft voir dire questions to eliminate undesirable jurors without wasting peremptory challenges. Social media can reveal work history, political affiliation, charitable activity, personal and professional relationships and affiliations, purchasing habits, hobbies, socioeconomic status and many other traits that may impact a juror’s way of thinking about a case.
If the names of prospective jurors are not made available in advance, using social media can be more difficult. Certainly, attorneys cannot examine jurors’ Facebook pages during active voir dire of the panel. However, counsel should consider having another attorney perform social media research on jurors during questioning. Although time constraints will prevent the attorneys from probing as wide or as deep as they could if they were able to do so in advance, even a shallow investigation might weed out a problematic juror or two who might have otherwise made it through.
After voir dire is complete and a jury is impaneled, counsel should investigate the jury more thoroughly. As noted above, the jurors’ social media pages may provide a wealth of information that will give insight into how they will think about a case and deliberate the evidence. Counsel can use this information to better craft their arguments and examinations to specifically address the tendencies of individual jurors.
Counsel should also monitor jurors’ social media use during trial to see whether jurors are improperly discussing the case. Most judges now give an instruction to the jury at the time they are impaneled that they are not to discuss the case on their social media. Some judges require juries to pledge or take an oath that they will obey the instruction. It now seems that, nearly every week, a new story emerges about a juror who ignored the instruction, discussed the case and either caused a mistrial or was dismissed from the jury. Counsel should know if the jury is misbehaving.
Finally, what if you’ve lost the trial, and you need a new one? Social media might be able to help. Perhaps a juror, after finding your company liable, revealed on Facebook that she never would have agreed with the verdict if another juror hadn’t told her that your company just fired 500 people in her hometown. Perhaps a juror had discussed the case and solicited input from his many friends on Facebook, who encouraged him to find for your opponent. Perhaps a juror lied during voir dire and concealed information that clearly reveals a significant bias against your company. Perhaps a juror concealed relationships with parties or witnesses involved in the case. While judges are loath to disturb a verdict on allegations of juror misconduct, most will entertain and consider post-trial motions involving scenarios like those presented above.
Use of social media during trial can provide information that has previously never been available to counsel. As data management and analytics increase in capacity and ability, its use will only increase. If your opponent isn’t using it for the reasons listed above, it can provide you with a great advantage. If your opponent is using it, shouldn’t you be using it, too? •
Top Social Media Sites
Of the countless social media platforms currently in existence, the following are some of today’s most popular, and consequently, most useful sites.
•Facebook: The undisputed champion as the largest of the social networks, this site allows users to post thoughts, pictures and videos and to cross-network with other users via the “friend” function.
• Twitter: The second-largest social network with more than 500 million accounts, this service allows users to share thoughts in 140 character bursts, along with links, pictures and video clips.
• Pinterest: Billed as a virtual pinboard and currently recognized as the third-most popular platform, Pinterest allows its users to tag and organize various content from around the Web and display it on their own pages.
• LinkedIn: A sort of Facebook for professionals, this site allows users to post resumes and business affiliations while connecting with other users.
• Tumblr: A blog-hosting platform that allows users to create and personalize their own blogs.
• Google Plus: Google’s answer to Facebook, this relatively new platform has had some difficulty attracting users, but with Google behind it, it is likely around for the long haul.
Published in The Legal Intelligencer on May 16, 2012.