Friday, November 13, 2009

Boredom, trials and social media.

Recently there was an interesting discussion in the LinkedIn Trial Technology forums. It involved the use of social media websites by jurors during the course of trial. The thrust of the conversation questioned ethical issues in researching these websites for juror content. I have been doing a great deal of thinking about this over the past few weeks. As user of social media I base some of my opinions in this blog off what I see from my own friends and family. Still to this day I remain amazed at what is often posted on sites such as Facebook or MySpace.

As I delve further into this subject please be aware I do not hold myself out to have any background (other than dealing with my kids) in psychology. Rather a firm grasp of common sense and what happens in a courtroom. So what makes our jury panel turn to social media to talk about a case? BOREDOM. Sure our judge has warned the jury that using social media (or email) to discuss the case is not allowed. And further they could be found in contempt of court if they disregard these rules. But let us snap back into reality and remember that most jurors have their privacy setting set.

Since we have no idea what is going on behind the scene we need to really focus the jury on the case. In years past the danger of outside influence could be considered minimal compared to now. Sure a juror could have spoke about a case in casual social conversation. Maybe they even spoke with one person on the phone. Or maybe they adhered to the standard of behavior asked and spoke to no one. Now we have a problem case teams need to consider. A juror can potentially post about the case with total privacy and have dozens of people weigh in on it. All of this with the click of a mouse or the enter button on a wireless device.

I suggest the biggest catalyst of this problem is boredom second only to asking “experts” among family and friends questions. This usually occurs when a trial lawyer combined with his or her witness is talking over the jury. Sure you might have college educated people on your jury panel. But they don’t know what a retroflex fasciculus, dacryoblennorrhea or radiculopathy is. Imagine a case where you have a hand injury and the subsequent treatment is alleged to not meet the standard of care. The trial lawyer and his or her experts have a direct or cross which is just not decipherable by the jury. One of the jurors bored out of his mind posts about it later that night as in the example to the left.

Where does this get a juror who does not understand the case? Will they continue to post and discuss the case with their cyber jury. We really cannot rely on other jurors to explain complicated concepts to their peers during deliberation. So herein lays the danger I think with boredom, trials and social media. Case teams really need to have their experts explain their testimony to the jury like a 5th grader and not a colleague. Overly technical discussions are usually lost on a jury, especially after lunch when their bellies are full of food. Moreover trial lawyers need to remember they may be familiar with these terms and concepts but the jury is not. The jury needs to learn the evidence from the testimony and not a review of Wikipedia because they don’t understand something.

Certainly focusing the jury on the evidence and what happens in the courtroom is not the complete solution. It is however something to consider when preparing testimony, demonstratives and exhibits for a case. Keep it interesting and maybe they will not give into boredom and use social media to complain about it. Surely there are other reasons a juror may potentially turn to the internet for guidance but boredom certainly is a primary factor. All the curative instructions in the world cannot stop a wandering mind…

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