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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. If real money was spent on this study, what a shame. And if some air-head professor tries to use this to advance a career, pity the poor student. I am approaching a time that i (and others around me) should be vigilant. I don't think I'm anywhere near there yet, but seeing the subject I was looking forward to something I might use to look for some benchmarks. When finally finding my way to the hidden questionnaire all I could say to myself was...what a joke. Those are open and obvious signs of any impaired lawyer (or non-lawyer, for that matter), And if one needs a checklist to discern those tell-tale signs of impairment at any age, one shouldn't be practicing law. Another reason I don't regret dropping my ABA membership some number of years ago.

  2. The case should have been spiked. Give the kid a break. He can serve and maybe die for Uncle Sam and can't have a drink? Wow. And they won't even let him defend himself. What a gross lack of prosecutorial oversight and judgment. WOW

  3. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  4. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  5. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

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