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January 01, 2017

Advance Sheet: Facebook Fandango

Robert E. Shapiro

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Few technological developments in recent years have had as great or sudden an impact on our lives as social media. Virtually unknown seven or eight years ago, the likes of Facebook, Twitter, LinkedIn, and others now consume vast amounts of most people’s time, rivaling even that spent on that other great transformational technology, television. You see it everywhere. There is the desk worker who, as soon as he leaves his office, whips out his smartphone to begin scrolling through his Facebook contacts, assuming he even waits until then. In an elevator, few passengers acknowledge others as their noses are set deep into their media screens. A simple walk down the street has become a dodger’s exercise. It is a regular part of the morning routine for many to see what postings there have been or what the latest news is from some familiar quarter or other. In the social media tsunami, even the rival maunderings of the established TV morning news shows barely stand a chance.

What is taken in, however, seems hardly more important than what is sent out. Every person on social media gets to create a persona, an image of himself or herself, that is there for all or most of the immediate world to see. As one astute commentator has noted, on Facebook everyone can be a celebrity. A user gets to choose what part of his life he wants to project to others. The pictures, the comments, the likes and dislikes, the frequent commentary all create a very self-conscious self of varying relationship to reality. Perhaps you too have had this experience. A group of friends travels to South Beach one weekend to enjoy Florida’s most vibrant social scene. One friend inexplicably stays indoors sulking the entire weekend, unwilling to join in the hazard-tinged festivities. But her profile the following Monday tells a different story, about how fabulous and stimulating a time she had enjoying the sights and sounds of Florida’s magical strip.

An exaggerated example perhaps, but still one that highlights some of the less desirable elements of our Facebook lives. What you read there is often not life but a bowdlerized version of it, a self-consciously created fantasy that social media users want to project as their lives. The goal is to make ourselves interesting or worthy of admiration or sympathy. Few will disclose their true selves, which include their most shameful moments and their genuine desires and fears. There is a lot here for an observer of human nature to contemplate, though it needs to be translated through statements made without much care and with all the confusions, contradictions, and contrivances of modern life.

With so powerful an effect on daily life, it was inevitable that a phenomenon like social media would begin to affect the political, business, and legal worlds. Politics on Facebook is a harsh and lonely place for those who do not share the accepted opinions. A kind of electrifying groupthink has there a complete and sudden impact, perpetuating superficially appealing ideas and crushing novel thoughts into dust.

Conversely, the press is rife these days with stories about how political campaigns use social media to target undecided voters and get out the vote. However contradictory or confusing, a Facebook denizen’s profile can reveal enough about her to be exploited by candidates looking for supporters. Such efforts, as the Obama campaign proved in 2012, can be enormously sophisticated. Sometimes the political campaigns seem to know more about you than you know about yourself.

Businesses too have taken to this new information source. It’s the rare instance these days that a person’s Facebook page is not one of the things consulted during the hiring process. Companies employing white-collar workers mine this rich lode in deciding among applicants, looking to see if there might be lurking some undesirable trait or just a lack of good sense or discretion.

Then there is the obverse side in sales and marketing. The vast operations now in place for all major retailers are astonishing. If you are a regular online user of some company’s products, you will undoubtedly be bombarded by ads on social media that will entice you with special offers from that company or related to something you’ve purchased or even just investigated previously. Some retail companies maintain highly active chat rooms where they can promote, and have others discuss and tout, the company’s products. Pity the company that makes an errant comment on social media. It can bring instant infamy, even if unwarranted, and do major damage to the sales operations for a period of time, causing products or whole companies to drop out of favor. The only saving grace is that, in part because of the ephemeral character of Facebook and other social media, Americans tend to have very short memories.

Effect on Law

So far, there has been less of an effect from social media within the law, though 2Ls and 3Ls should be sure that law firms that consider extending an offer are studying their public postings. But social media are coming. One such foray of social media into the law showed up in that battle of the giants known as Oracle America, Inc. v. Google Inc., No. C 10-03561, now pending in the U.S. District Court for the Northern District of California. And the results were interesting.

The point of intersection was voir dire. Now, voir dire itself has gone through something of a transformation over the past 40 years. In the not-too-distant past, it was a kind of mini-trial, or mini-argument at least, where the prospective jury was provided with a preview of things to come. The most able trial lawyers knew how to present their case and begin persuading under the guise of exploring the jury’s prejudices. “Would you be willing to find for my client if. . .” was a common entrée, followed by a long list of facts the lawyer wished to emphasize or be able to set aside or minimize during the course of the trial. The process was a protracted one, and the impact on the jury considerable. At a minimum, the able trial lawyer was able to watch and record the reactions of the venire and thereby learn enough of their personalities to make a good decision when it came time for peremptory challenges.

The abuses of this process caused courts to swing in the other direction. Often in federal court these days, there is very little real voir dire at all, at least not in the traditional sense. Judges administer questionnaires of a quotidian sort or solicit oral questions from the parties’ counsel, which the court then poses itself to the venire. Most often, these questions are scrubbed of any real substance and solicit merely a yes or no answer, or even just a show of hands. You can learn almost nothing from this process.

Some federal courts carry this to an extreme, not wanting in any way to inconvenience or embarrass prospective jurors. Beware of trying for something more. One trial lawyer persuaded a federal magistrate to ask questions that called for narrative answers, despite the judge’s correct view that the jury would not like the intrusion. After grudgingly conducting the examination, the judge turned to the counsel who had sought the questions and issued the snappy comment: “I hope you are satisfied now, Mr. Smith.” The lawyer got his information, but only by paying the price that the unhappy jury knew whom to blame.

Jury consultants have thrived in this more closed environment, as trial lawyers became hungrier for some kind of information, real or otherwise, about the prospective jurors. No one has ever found a way to test sufficiently the ability of these consultants to forecast the thinking of the venire, not least because most federal courts no longer allow jurors to be interviewed after the fact. There are those who swear by these supposed experts and those who find them a waste of (a lot of) good money. At best, the predictive value is marginal.

Social media have the potential to transform the process. Now, venirepersons sitting in the box have offered the public a virtual treasure trove of information about themselves, ready to be sampled. With names and addresses in hand, lawyers at voir dire are in a position to glean all kinds of information about the prospective jurors, viewing Facebook pages, Twitter feeds, LinkedIn profiles, and the plain old information that a customary Google search might yield. No juror is safe anymore in concealing a possible bias, and all jurors have opened themselves up to anyone who cares to take the time to investigate them, as any capable trial lawyer would.

Oracle v. Google

Ironic it was that the first thoughtful analysis of such a process arose in Oracle v. Google, given the latter company’s role in advancing the cause of Internet searches, not to mention targeted ads. The trial judge, however, was unhappy about the possible consequences for the jury. In a moving peroration, Judge William Alsup intoned about the “reverential respect” each juror was entitled to and rued the day—today—when they “must suffer trial lawyers and jury consultants scouring over their Facebook and other profiles to dissect their politics, religion, relationships, preferences, friends, photographs, and other personal information.” Oracle Am., Inc. v. Google Inc., 172 F. Supp. 3d 1100, 1101 (N.D. Cal. 2016). He wanted to stop the process in its tracks and invited the parties to agree to forgo any such searches voluntarily. When Oracle demurred, he imposed restrictions.

Chief among these was an announcement to the venire of “the specific extent to which [a party] . . . will use Internet searches to investigate and monitor jurors.” The parties were allowed to explain their conduct as something they were “obliged” to do to protect their clients, but they were not permitted to blame the other side or intimate that the court approved. After the announcement, the venirepersons would then be given a few minutes to adjust their privacy settings on all social media using their mobile phones. The expectation seemed to be that this would result in all jurors switching their settings to private.

Explaining his reasons, Judge Alsup first conceded that “social media and Internet searches on the venire would turn up information useful to the lawyers in exercising their three peremptory challenges.” He also admitted that, in some cases, assertedly “very rare,” the searches might “turn up information concealed during voir dire that could lead to a for-cause removal.” During the trial, moreover, a renewed search might reveal commentary or comment about the case from an actual juror, leading to the juror being excused. None of these worthy objectives persuaded him, however, in light of three great evils the court saw in permitting such searches.

First, Judge Alsup opined that the activity of the lawyers, if discovered by the jurors, might reflexively lead the jurors to want to do searches of their own. He saw a great danger of this in the case already because of the presence of Google as a party, which might trigger in some jurors’ minds the idea of doing some of their own out-of-court sleuthing. Although the court had resolved to give a repeated instruction to the jury not to do such searches, it found that snooping into the venire’s more private lives through the parties’ investigations of social media would provide too great of an additional incentive for a juror to disregard the court’s rules.

Second, Judge Alsup viewed the information as likely to be misused by counsel, who could tailor their remarks to those likes and dislikes of the jurors discovered during an Internet-infused voir dire process. Thus, a juror who had revealed online her love of To Kill a Mockingbird, or had bemoaned the recent death of Harper Lee, might be especially susceptible to an argument using an Atticus Finch–inspired analogy, which would allow the lawyer to “ingratiate himself or herself into the heartstrings of that juror.” Finally, the court believed it necessary to “protect the privacy of the venire.” Skillful investigators, perhaps posing as “friends of friends,” might be able to learn too much about a juror. The judge opined that “navigating privacy settings and fully understanding default settings [in social media] is more a matter of blind faith than conscious choice.”

Each of these reasons seems less than compelling. If Judge Alsup had not forced counsel to disclose their social media viewing, no juror would be more inclined to defy his ban on Internet viewing. And the idea that a juror, having found out that the lawyers had looked at her public profile, might be emboldened to ignore the court’s instructions not to use the Internet seems more than a little far-fetched.

A lawyer wanting to make a certain kind of pitch to one juror risks antagonizing others. Besides, trying to predict how individual jurors will respond to such an emotional appeal is fraught. In one famous case, a noted trial lawyer thought he had appealed greatly to a woman juror who constantly flashed admiring eyes at him. He was right, but not in the way expected. When interviewed after a crushingly negative result for the admired lawyer’s client, the juror did ask about his marital status. She also, as it turned out, was the juror who had led the charge against the lawyer she pined after.

Privacy? Judge Alsup may have been right that some jurors may not have understood their own privacy settings. But the converse seems to be equally likely. Some may have understood them all too well. People love to parade themselves in public view, as a quick gander at the jumbotron at any professional sports stadium will confirm. On social media, they love to do so even more. The more pressing question was whether the information being purveyed there was worthy of credibility at all. Much as the South Florida tourist had done, venirepersons may have provided a highly misleading account of what they like and do, and a lawyer who relies on this does so at her peril. But is there really an invasion of privacy here?

To be sure, there does seem to be something a little creepy about lawyers rummaging through the venire’s social media posts. One wonders, however, whether Judge Alsup, for all his concern, correctly analyzed the problem. Some of his objections were self-fulfilling. By telling the jurors that the lawyers are hunting around, even on a limited basis, he seemed to be aggravating any likelihood that they would do such searches themselves, while also holding the legal system in contempt for its intrusions.

But there is a deeper problem still, lost in this controversy caused by the court’s ruling. Beyond the need for finding genuine bias, why allow voir dire or, more exactly, peremptory challenges based on it at all? Prejudice is one thing, and a proper basis for dismissal, but why should a juror’s mere leanings or tendencies be considered? We are guaranteed a right to a jury of our peers, but not one of our fellow travelers. Is there any sense in a voir dire directed at anything other than outright bias? Why do we permit this?

Long practice by itself is no excuse. What is the thinking behind a peremptory challenge? One answer might be that some forms of bias are more subtle than others, and we rely on the parties to ferret this out and make their own judgments on who will be fair and who not. If so, Internet searches may be just the thing needed, to find what is deep-seated, not at all apparent on the surface. They may make voir dire truly effective and not the mere intrusive sport of lawyers merely curious.

Unfortunately, Judge Alsup went with his immediate discomfort, rather than a more analytic and insightful consideration of the purposes of voir dire. A genuine balancing approach is called for, with the true privacy interests of the jury weighed against allowing the lawyers to learn what they can, however misleading that information may turn out to be in the end.

Robert E. Shapiro

The author, an associate editor of Litigation, is with Barack Ferrazzano Kirschbaum & Nagelberg LLP, Chicago.