A Trial Attorney’s ​“Google” Responsibilities

Facebook, Twitter, LinkedIn and other social media services store the personal and professional information of millions of users. To the enterprising trial attorney, that’s millions of tweets, posts, photos, ​‘likes’, pins, checked-ins and winky-faced emoji that can be used to profile jurors during voir dire – sometimes to ill-effect. As people continue to reveal their lives online, we will publish a series of advisories that dives into the fast-developing issues related to social media that are useful for every litigator in any kind of civil or criminal case to keep current on this rapidly developing and evolving area of the law. A few recent examples of how social media is changing the courtroom landscape are noted below along with useful pointers for attorneys looking to mine a juror’s social media presence.

Social media also can be an invaluable fact-checking resource. A juror may lie in the courtroom, but not on her WordPress. 

In 2016, social media revelations nearly derailed the trial of New York City police officer Peter Liang whose bullet ricocheted in a Brooklyn stairwell and killed Akai Gurley. Mid-trial, an article in The New York Times (Juror Imperils Conviction of Peter Liang, Ex-Officer, in Brooklyn Killing) and some Facebook posts revealed that a juror in the case concealed his antipathy towards law enforcement and his father’s conviction for a similar crime.

In 2014, a Texas Assistant District Attorney struck a panelist for ​“activism” because her Facebook page revealed a link to a travel guide for African Americans during Jim Crow as well as membership to the National Advancement of Colored People NAACP in Jasmine Ulloa & Tony Plohetski.  A successful Batson challenge ensued. Data shows that many jurors expect to be ​“googled.” In a 2016 survey of 100 jurors conducted by Vinson & Company on Using Social Media an Other Background Research in Voir Dire, 76% expected corporate defense lawyers to always monitor jurors’ social media accounts for publicly visible information, and 68% expected criminal defense lawyers to do the same.

While jurors may not mind social media mining, judges and legal ethics bodies have qualms.

Citing privacy concerns, the Judge in California’s Oracle America v. Google case asked attorneys to choose between more time for voir dire or the limited ability to ​“scrub” social media accounts. In New Jersey, a trial judge impermissibly ordered a plaintiff’s lawyer stop to using the court’s wifi to Google jurors.

Kelley Drye litigation partner Neil Merkl wrote a chapter on ​“Social Media” in the critically acclaimed treatise entitled Commercial Litigation in New York State Courts. In his chapter, Mr. Merkl has some practical advice for attorneys looking to mine a juror’s social media presence. A few key takeaways involving social media and jurors include:

• Looking at publicly available information on social media sites is permissible, as long as no contact is made with the juror.
• The Rules of Professional Conduct prohibit ex parte communication between attorneys and prospective juror’s or members of the sitting jury. Lawyers and their agents should be aware of what alerts or messages different social media websites send when a user’s profile is viewed. Notably, in New York, if a juror is notified that a lawyer viewed his social media profile, the lawyer is said to have contacted the juror. This is true if the lawyer knew the juror or potential juror would receive the notification and is also likely true even if the lawyer was unaware that an automatic notification would be sent.
• Where a lawyer chooses to survey a juror’s social media profile, she may be under obligation to tell the court what she found.
• New York Rule of Professional Conduct 3.5 requires a lawyer to report to the court any improper conduct by a juror or prospective juror. If a lawyer sees anything on social media that would be misconduct–such as discussing the case with friends or evidence that a juror lied during voir dire –the lawyer has an obligation to report that to the court.

Numerous book reviews of this treatise have been published which describe Mr. Merkl’s chapter. One reviewer said that this chapter is ​“of particular interest and great value” and concluded that ​“This chapter should be required reading for all litigators - commercial or otherwise.” Another reviewer said that this chapter is ​“particularly useful, indeed critical, to the modern commercial litigator and trial lawyer.” Yet another reviewer said that this ​“chapter is of great benefit to the practitioner.” An excerpt of the chapter is reproduced by permission of Thomson Reuters. Read an excerpt of the Social Media chapter.

For more information on this advisory, please contact:

Neil Merkl
(212) 808-7811
nmerkl@​kelleydrye.​com