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ABA warns against 'liking' potential jurors

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Indiana Lawyer Focus

Allen County courts have been instructing juries for the past two or three years to stay away from social media during a trial. Jurors are told not to log on to their accounts to research the case or survey Google maps to look at the crime scene or post anything about the trial on the Internet.

At the end of one court hearing, Allen Superior Judge Frances Gull was told by a juror that she did not touch a computer at all during the trial because she was so scared of violating the instructions.

Gull was pleased. Jurors, she said, should not be messing around with computers during trials.

Recently, the American Bar Association issued similar instructions to lawyers, advising litigators to avoid messing around with social media during trials.

The ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 466 in April which says that attorneys should not message a juror or try to gain access to a juror’s private account before or during a court proceeding.

Lawyers applaud the statement from the ABA, saying abuses can easily happen given the extreme popularity of social media like Facebook and Twitter.

“This is an issue that is pertinent to today’s society because so many people participate in social media,” said Indiana Trial Lawyers Association president Mark Ladendorf. “As a result, I think it is something we can’t ignore.”

Ladendorf said the ABA opinion is a good start. He especially likes the document’s language detailing what attorneys should and should not do.

People chronicling their daily lives on social media has become so common place, Evansville attorney Joe Langerak agreed, that lawyers, like anyone else, may post information without thinking about the impact it could have.

Langerak, partner at Rudolph Fine Porter & Johnson LLP, has changed the way he conducts a hearing because of an encounter with a social media misstep.

The incident happened a few years ago during an out-of-town trial. At the start of the final day, the judge called all the attorneys into his chambers and passed around a copy of a Facebook post made by one of the opposing counsel. In the entry, the attorney boasted about his trial work and made comments about some witnesses.

The attorney was very apologetic, but Langerak was so taken aback that he had to walk the halls of the courthouse and think through the situation before deciding what to do.

He does not think the opposing attorney was purposefully trying to influence the jury, but now he takes preventive measures. Whenever he has a case that goes to trial, Langerak has a paralegal monitor social media and asks the court to issue an order regarding the use of social media.

The ABA opinion allows a lawyer to review a juror’s Internet pages and postings that are available in the public domain but it bars the lawyer from trying to communicate with that juror through social media.

Using the analogy of an attorney just driving by a juror’s house, the ABA held an attorney would not be engaging in ex parte contact by searching the Internet to find information about the juror. However, if the attorney contacts the juror online and asks for information that is not public, that is akin to stopping the car and asking to see inside the juror’s house.

Ladendorf’s firm always asks new clients for permission to access their complete social media pages. The attorneys do not want clients posting comments or photos that opposing counsel could use to undermine the plaintiff’s case.

As an example, the personal injury attorney said a client who claims a bad injury should not upload photos of himself or herself doing cartwheels.

Just like juries, Langerak wondered if judges could also be tainted by social media. Social media posts and comments about an expert or a witness could influence a judge to rethink his or her assessment of the testimony.

“It just doesn’t impact juries,” Langerak said of social media. “It has the potential to impact the judicial arm of the court.”

While jurors are being instructed, Gull said she has never had to instruct the attorneys on use of social media. However, she conceded maybe things are happening of which the court was not aware.

Gull, noting how much her children in their 20s engage on social media, believes judges will have to become more proactive as younger attorneys, clients and jurors appear before the courts. The judges will have to get more specific, she said, and explain what is put on the Internet cannot be erased.

Likewise, judges should be very careful about their own use of social media, she said. The bench has to avoid the appearance of impropriety.•
 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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