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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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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