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. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.