[authors: Barry Buchman and Emily Grim]
As in any case, a favorable jury can be a key component to success in an insurance coverage trial. Selecting a sympathetic jury, however, is no easy task. Historically, jury selection has been akin to a guessing game, as practitioners have relied largely upon jury questionnaires or brief interviews during voir dire to glean information on the background and beliefs of potential jurors.
With the explosion in popularity of social networking sites such as Facebook, MySpace, Twitter, and LinkedIn, however, practitioners have a new weapon in their litigation arsenal: social media research.
Unlike jury questionnaires, which often reveal only basic information about a juror’s background, social media content can provide a unique window into a juror’s personal views, biases or affiliations. In insurance coverage cases, for example, an attorney might search for the following:
• A juror may have posted on Facebook, Twitter, or a personal blog some information about a past negative experience with his or her own insurance company, suggesting a potential lack of sympathy towards insurers.
• A juror may have expressed sentiments on Facebook, Twitter, or a personal blog that are critical of large corporations, potentially suggesting either lack of sympathy for an insurer or, conversely, lack of sympathy for large corporate policyholders.
Further, lawyers also may discover that one or more jurors themselves is violating court instructions by commenting about a trial online while it is in progress, or by following one or more of the trial participants, such as a lawyer or witness, online. This has been a growing problem, and courts recently have taken measures to address it.
Can a trial lawyer use such information to try to keep a juror out, or to try to make sure a juror stays in? Is this ethical?
There is an emerging consensus among courts and bar associations that social media research of jurors is legally and ethically permissible. Indeed, one court has gone so far as to indicate that at least some limited amount of such research is required, because of the obligation to represent a client zealously, within the limits of the law, when the information is available simply by going online and looking at a publicly available website. Recent ethics opinions indicate that viewing the public portion of a person’s Facebook page, for example, gives rise to no ethical implications, as the user has no privacy expectations concerning that content and the act involves no inappropriate or deceptive communications by the attorney. What if the juror had written a newspaper op-ed article about the topic? There would be no ethical reason not to read it and act accordingly.
However, a good deal of information on sites such as Twitter, Facebook, and LinkedIn can be accessed only by “friends” of the user on Facebook, those who “follow” the user on Twitter, those who are first-degree connections on LinkedIn, and so on. This information is not available to the general public. A trial lawyer who takes action to “friend” the prospective juror, to “follow” him or her on Twitter, or the like, in order to get access to the information, may well have crossed an ethical line – in this case, the rule against communicating directly with a juror. According to some ethics opinions, lawyers also may have to stop viewing even the publicly-available online information of a prospective or actual juror if the juror becomes aware of the monitoring, because of the risk that the juror will feel intimidated or harassed.
This area continues to be a rapidly evolving one, and thus there remain, of course, many unanswered questions regarding the legal and ethical boundaries around the use of social media in litigation. Stay tuned; we will continue to monitor this area and we will post updates.