The Unique Challenges of Social Media in Court

Trying a case in today's increasingly connected society-due to the proliferation of social media as well as the ease of accessing information via mobile devices-has become a challenge for attorneys and judges alike, and was the topic of discussion during a recent Webinar sponsored by LexisNexis.

The Webinar, entitled "Juries, Social Media and the Court: What You Need to Know About this Intersection" featured an esteemed panel including Edward Slaughter of Hawkins, Parnell, Thackston & Young, LLP;, Hon. Sandra Mazer Moss of the Philadelphia Court of Common Pleas;, Galina Davidoff of Magna Legal Services; and Pamela Lee of the Locks Law Firm LLC.

"[Social media] is part of people's identity-it's real stuff," said Davidoff.

"I think on the global scale of things, it used to be that where we lived, people knew everything about us and it would be rare for somebody to be a stranger. And then with the growth of the big cities we developed a culture where a lot of the people around us were strangers. But now with just about everybody having a footprint on the Internet ... all anonymity is fading despite all the concerns of privacy," said Davidoff.

Slaughter stated that he felt that social media should not just be defined as the popular networking websites-including Facebook, LinkedIn®, Twitter, Myspace® and newcomers such as Pinterest® and Google+TM-but also should include email and text messaging. He said that emails and texts are "the things I'm most concerned about in a trial."

Judge Moss agreed with his assessment.

"I think email is social media as well as texting, because you're talking to each other," she said. "So I think sometimes-particularly the younger people-don't realize the permanence of their emails, their texting and their photographs. It feels so casual and informal but we really have to take it seriously because it really is permanent."

She pointed out that people should understand that they don't have an expectation of privacy once they go onto social media. Lee added that all "Tweets," or entries by a user on Twitter, are now archived by the Library of Congress and can be subject to discovery in a case.

Social Media and Jurors

Judge Moss said that she has observed that many jurors "start their own investigation" of a case as early as jury selection process.

"They look up attorneys on Google. They'll Google your CVs and find out who you are-and that's something you have to be aware of when you put your CVs out on the Internet. They'll also text their friends about what's going on in the courtroom. They may post daily activity on Facebook-we've seen that, especially in a high profile case.

"Jurors don't try to upset the trial, but they're naturally social and they like to talk about what they're doing-particularly if they're used to being on Facebook or on Twitter or they're used to texting their friends. Jurors have also been known to go on MapQuest® to get an aerial view of an accident scene to see for themselves if they think there's been negligence or not, which can be very scary," said Judge Moss.

She said that the judge needs to emphasize early in the process that jurors need to "overcome the urge" to tell their friends and the rest of the world what is going on in the courtroom. The judge also needs to caution jurors "not to do their own research online."

"I know that there are judges who require jurors to pledge in writing that they're not going to do any of this. I think that's going a little bit over the top, because jurors are like children and if you tell them you have to sign a pledge ... I can assure you that the first thing they're going to want to do is what the judge told them not to do, " she said.

Slaughter said that he has seen several occasions where the juror may have deliberately broken the social media policy of the courtroom to get out of being in a trial.

"We were dealing with someone who clearly understood what they weren't supposed to do and then came back after a break and confessed. And I really got the impression that's what they were doing," he said.

Slaughter said that although different states and federal courts have their own rules about social media use, they are "not too terribly different" in that the trend is to be "more specific" about what is allowed and what isn't.

"Courts found that jurors didn't quite understand what we meant. If the judge said, don't get on the Internet, someone would pick up their phone immediately and start texting. Because to them it's not the same thing-and maybe it's not. And so I think the trend that I see in all the instructions is more specificity," he said.

"I worry we're always going to be one step behind the technology and that things are going to evolve faster than we can figure out to warn about them," he said.

Social Media and Clients

Slaughter said that he often emphasizes to his clients the importance of having a good image on the Internet. He advises his clients to find out what they look like on the Internet to a juror and decide whether their electronic image needs a makeover.

"Be conscious of what's on your website; be conscious of what your employees are putting on their personal websites or what they're blogging about," he said.

Lee added that attorneys need to emphasize the duty of a party in a lawsuit to preserve evidence and to be careful about what they post on social media.

"I tell them to change their privacy settings-they need to refrain from posting. But if they must, they must refrain from posting anything about the case, attorney/client privilege, etc." said Lee.

Jury Selection Process

Slaughter said that social media can prove to be very helpful during the jury selection process. "I use all the tools I can put my hands on, and when I'm fortunate to have someone like Galina [Davidoff] to help me do research, we do even more," he said.

Davidoff, who specializes in jury selection, said that, depending on the court, she will receive a list of the potential jurors either when they walk in, or a little bit in advance. At that point, the jury consultant will either begin looking up jurors on a laptop or tablet in the courtroom or will have someone at the home office look them up.

"One word of advice-don't try to piece together a psychological portrait of everybody you've got on your jury. You're not going to have time for that and what you're going to get is probably going to be misleading because people don't put out everything about themselves. They try to put their best foot forward and they create identities on the Internet for various purposes.

"Remember that jury selection focuses you on people you want to excuse," said Davidoff.

Judge Moss advised lawyers to be careful about letting jurors know that they are snooping on their social media pages.

"It's hard to balance-they're being told every day, don't go on social media, don't do your own research, don't find out about things. It's going to be hard to listen if they think you've done it to them. And it doesn't matter if they blame you, your client or the court, they're still going to do it themselves.

"I think what you have to do is sort of ask questions that are open ended of everybody and then zero in a little bit so that they will assume you got it from the questions and not from Facebook," said Judge Moss.