Because of the prevalence of Internet use by jurors, there has been much written about using a juror’s social media profile as part of jury selection or monitoring jurors’ Internet presence during a trial. So much so that the American Bar Association issued Formal Opinion 466 to deal with questions regarding a lawyer’s ability to review and monitor a juror’s Internet presence. The opinion provided straightforward guidance about what was and was not permissible.
Yet, in the context of business litigation, an important part of the ongoing conversation about technology and juries is often missing. None of us doubts the role of the Internet in shaping public opinion about everything from products to politicians. So why have we been so slow to understand as business litigators that how a jury perceives our clients and the attorneys involved can make all the difference? The Internet in many ways is like the thirteenth juror who can affect your case in ways that you will never know—unless you try to get a handle on what the panel will see.
My first experience with having an opposing party use the Internet to create a false impression of my client and his case was particularly brutal. Before filing a complaint, the plaintiff hired a public relations specialist to create a fake website that fronted as a news site “reporting” allegations of corporate malfeasance as if they were true. In the wake of the Bernie Madoff scandal, the use of the term Ponzi guaranteed reader interest and a high ranking in Internet searches. That same plaintiff also produced, and posted on YouTube, a slick video that contained an interview with the plaintiff, painting him as a victim, again done in an advertorial way that could fool the average person. Stories were planted in the local newspapers so that when the lawsuit was ultimately filed, the front-page story hit my client without any notice and without any real ability to respond. Whether this effort was intended to put pressure on my client to settle or ultimately to taint a jury is unknown. But the damage was done. The “virtual reality” of the case was fixed before I even entered an appearance, and it was ready to be discovered in any potential juror’s first Google search.
Understanding that my client’s virtual nightmare is not a typical litigation experience does not make the moral any less important.
When first retained, you should immediately do an extensive Internet search for any information concerning your client and the opposing party. Are there customer complaints that mirror any of the allegations in the case? Are there other lawsuits or news stories that present a one-sided story? And are there comments sections on third-party websites that contain tirades by unhappy consumers? Any and all of these scenarios are likely when you are dealing with businesses in high-stakes litigation.
The same is true, of course, for individual clients. A friend of mine had a client who, unbeknownst to him, was a “fetish” blogger with an extensive virtual identity that was counter to her schoolmarm-esque presentation to the jury. Needless to say, this disconnect undermined her credibility and may have affected jurors in other ways due to the sensitive nature of her online activities. Know your client’s virtual reputation. If you do not know what is out there, there is no way to blunt the damage.
Beyond the parties, once you understand who the witnesses are going to be, do individual searches to understand each person’s online identity. This is especially important for expert witnesses, who many times have an established digital footprint because of prior testimony and have gone to great trouble to craft their online images. Many of us research our witnesses to find impeachment material for cross-examination, but we rarely do so with an independent eye to see if how they present virtually helps or hurts their credibility.
Being proactive works too and really is no different than what any business should be doing as part of an effective public relations strategy. Your client should create positive postings on social media sites and should regularly post on Twitter, Facebook, LinkedIn, and Google+ and post positive video shorts on YouTube. There is a caveat: Never advise your client to post false product reviews or fake news releases (that can hurt more than help), and never advise your client to destroy anything that might come in as evidence. On your end, create Google alerts for the company and its executives so that you are aware of anything that is posted about your client. If you believe that your client has been the target of a false information campaign, there are hundreds of companies that monitor, improve, and police the virtual reputations of individuals and businesses. In “bet the bank” litigation, this may have to be part of the overall litigation strategy.
On the flipside, know the virtual reputation of your opponent so that you can use it to your advantage when developing your trial theme. If the opposing party is “virtually” known as unreliable and untruthful, then that should underlie your presentation even if there is no way to ever know whether a juror will discover this information. If a juror does discover it, the “virtual reputation” of your opponent will corroborate your side of the case and serve as an “independent” source providing credence to everything that you say.
The same idea holds true for yourself and for your opposing counsel. Know what a juror is going to see when entering your name into a search engine. In Georgia, where I practice, a judge put a juror in jail after that juror admitted that the online profile of the attorneys in the case helped her make her decision. Not surprisingly, the juror researched the attorneys in violation of the court’s order. A trend with some law firms is to pull down the firm’s regular website during trial and put up a site that focuses on the lawyers’ good deeds and community service with the hope that a juror will find it when searching online. On the more malevolent end, counsel for the other side posted an article on her LinkedIn profile that supported her argument that my expert was relying on junk science. I use these examples not to encourage anyone to do the same but to make you aware that your brother at the bar just might.
So how can we best protect our clients? The best practice is to request that the court enter an order that requires jurors to refrain from any Internet use doing the pendency of the trial. Unfortunately, the ability to enforce this prohibition is often illusory as discussed above. And the force with which the judge instructs the jury of the prohibition matters: A promise of jail time for violations can be particularly effective. Some courts prohibit jurors from taking their phones or tablets into the jury room during deliberations. This is intended to add yet another layer of protection to prevent improper searches like “what is proximate cause” or “how much evidence is a preponderance.” When obeyed, these types of orders effectively limit the information for deliberation to that which was properly entered into evidence. At the end of the day, the only reality that should matter is that which is admissible.
Keywords: litigation, business torts, jury, Internet searches, online reputation