For over 20 years I have practiced personal injury law in Florida, and without a doubt the single biggest change I have witnessed in my career is the increasing use and importance of social media. Specifically, social media has changed the way I look at every case. Virtually every cruise line I sue–like Carnival, Disney, Norwegian, and Royal Caribbean–as well as potential jurors, witnesses, defense lawyers, and even the judges in cruise accident cases all maintain at least some form of social media presence. I spend a lot of time looking at what those cruise lines are saying on their Twitter, Instagram, and Facebook accounts because that information can often be used in passenger accident litigation and case development as evidence.
The Federal Court Looks at Social Media in Jury Selection
This week the United States District Court for the Southern District of Florida’s Bench and Bar Conference was held on Miami Beach, and it was perhaps one to the best legal seminars I have ever attended because a lot of time was spent discussing the effects of social media on jury selection.
I often write and speak to lawyers about the importance of attending seminars and why they are so important. Some seminars are simply networking opportunities; others are more focused on education. This event struck the perfect balance of both. This event was held at the Miami Beach Convention Center and consisted of a number of panel presentations. What made the event so singularly spectacular was that the panels consisted exclusively not of lawyers, but of the actual United States Federal Court Judges and Magistrates that preside over our cases in Florida.
One of the areas of areas that was of particular interest to me was how the Federal Court is looking at the ways lawyers are using social media in the selection of jurors. Several of the judges discussed the formal opinion recently released by the American Bar Association’s Standing Committee on Ethics and Professional Responsibility about the use of social media in jury trial.
THE ABA’s FORMAL OPINION
The ABA’s Formal Opinion 466 draws the distinction between public and private material that people post on social media by categorizing three levels of permissible lawyer review of a juror’s profile and presence.
1. THE PASSIVE LAWYER REVIEW
“Passive Lawyer Review” of a juror’s social media profile is done when the juror is unaware that his or her profile is being reviewed. This occurs when the juror’s profile is open without any privacy settings. Anyone can look, anonymously, at the postings. This blog, for example, is set on “open,” and I don’t and won’t know who is reading this and when.
This means that unless limited by law or court order, a lawyer can review a juror’s or potential juror’s Internet presence, including postings by the juror or potential juror in advance of and during the trial.
2. THE ACTIVE LAWYER REVIEW
“Active Lawyer Review” occurs when the lawyer requests access to the juror’s profile through a friend request or invitation to connect and/or when the juror knows the identity of the viewer.
The ABA permits lawyers to passively search and read a juror’s public presence on the Internet. However, it is now forbidden to actively or directly communicate with a juror. This means simply that requesting to be a “friend” or to “connect” to a juror’s private profile or look at private photos, comments or blogs on sites like Facebook or LinkedIn is strictly prohibited.
3. JUROR IS AWARE THAT HIS OR HER PROFILE HAS BEEN VIEWED
Some sites will inform you if your profile has been viewed and by whom. The possibility that jurors or a potential jurors may become aware that a lawyer is reviewing their internet presence–when network settings notify the jurors–is permissible and does not constitute communication from the lawyer in violation of Rule 3.5(b).
MY USE OF FACEBOOK IN JURY SELECTION
My last jury trial was a complicated case involving a man who alleged that he developed an infection following a penile implant procedure that led to his penis developing gangrene and ultimately having to be amputated. The first time the case went to trial, we could not even find enough jurors who were willing to sit on the jury, and a mistrial was declared.
It took nearly two years before the case was recalled to trial. By that time the only remaining defendant was the anesthesiologist as both the surgeon and the hospital had settled. During the three days of voir dire or jury selection, I was looking at various potential jurors’ profiles on Facebook, etc., using an IPad. The internet Wi-Fi connection in the old Miami-Dade Courthouse kept fading in and out. At one point in the middle of my questioning a member of the panel of nearly 100 potential jurors, the internet stopped. As I turned my IPad from landscape to profile or the other way, to check the internet, I inadvertently requested to be friends with one of the potential jurors, who as it happened, was a 20-year veteran Assistant State Attorney. The potential juror reported, appropriately, what appeared to be an unethical effort by me to connect with her on Facebook.
Our trial judge, Beatrice Butchko, was alerted by the bailiff, and suddenly I was in what looked to be a boiling pot of trouble. Fortunately for me and my client, another lawyer had been sitting behind me and witnessed precisely what had occurred, and he explained it, as I did not understand how what I had done had occurred. Candidly, at the time the only explanation I had was that my Facebook account must have been hacked and that some force far more sophisticated than I am had taken tried to sabotage my case by requesting the Facebook friendship of a potential juror who happened to be a prosecutor.
I dodged a potential bullet, and the judge allowed the trial to continue. I share this lesson, as well as the ABA’s latest guidance to lawyers on Internet searches of jurors and potential jurors, with the hopes that others can avoid any potential problems in their upcoming trials.
PRACTICE TIPS FOR USING SOCIAL MEDIA IN JURY SELECTION
It is important that lawyers understand how social media work if they are going to use that resource. Simply clicking on the agreement button may not be enough. As the privacy settings and items change frequently with Facebook, LinkedIn, Twitter, and Google, a lawyer using social media to learn more about a juror may inadvertently violate the rules. Secondly, for those who are going to explore the profiles of jurors, I urge them to have a purpose for the potential invasion of privacy and not simply use it to embarrass the juror or delay the proceedings.
FREE CRUISE SHIP ACCIDENT CASE EVALUATION
I am passionate about helping passengers who have been injured aboard cruise ships. If you believe you want to sue Carnival, Royal Caribbean, or any other cruise line that has put its profit ahead of your safety, please contact me for a free initial legal consultation. Most cruise lines require that claims be filed within one year of the date of the accident. I am available to help you today. Call me at 1-866-597-4529 or email me.