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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. OK, now do something about this preverted anacronism

  2. William Hartley prosecutor of Wabash county constantly violates people rights. Withholds statement's, is bias towards certain people. His actions have ruined lives and families. In this county you question him or go out of town for a lawyer,he finds a way to make things worse for you. Unfair,biased and crooked.

  3. why is the State trying to play GOD? Automatic sealing of a record is immoral. People should have the right to decide how to handle a record. the state is playing GOD. I have searched for decades, then you want me to pay someone a huge price to contact my son. THIS is extortion and gestapo control. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW.

  4. I haven't made some of the best choices in the last two years I have been to marion county jail 1 and two on three different occasions each time of release dates I've spent 48 to 72 hours after date of release losing a job being denied my freedom after ordered please help

  5. Out here in Kansas, where I now work as a government attorney, we are nearing the end of a process that could have relevance in this matter: "Senate Bill 45 would allow any adult otherwise able to possess a handgun under state and federal laws to carry that gun concealed as a matter of course without a permit. This move, commonly called constitutional carry, would elevate the state to the same club that Vermont, Arizona, Alaska and Wyoming have joined in the past generation." More reading here: http://www.guns.com/2015/03/18/kansas-house-panel-goes-all-in-on-constitutional-carry-measure/ Time to man up, Hoosiers. (And I do not mean that in a sexist way.)

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