Wednesday, December 2, 2009

Plaintiffs "Friend" A Juror On Facebook, Problems Ensue

Imagine our collective voices singing War's hit song:  "Why can't we be friends?  Why can't we be friends? . . ."

A recent case out of a federal court in Maine reminds us that sometimes being friends just might get us into trouble.  Say, for example, when parties to a lawsuit friend their jurors on Facebook.  (And as I've discussed before, it can also be problematic for a judge to Facebook friend a lawyer).

As you probably know, parties to litigation have a right to an unbiased jury. So, imagine what went through the mind of plaintiffs’ counsel when four days after the jury returned a defense verdict, that lawyer received this email from a juror:

[D]id you know your plaintiff[s] advocated the use of mushrooms and weed smoking, and binge drinking all over the internet? . . . It[’s] really sad what happened but with all the work going into this don[’t] you think you should have address[ed] this issue and known such things so they could clean up their acts before court? I’m just trying to help.[] [I]f you want more info and insight [I] will help you.

The attorney quickly brought this to the court’s attention, and in preparing for a conference with the parties’ counsel, the judge also found an anonymous post-verdict response to a questionnaire from a juror saying one of the plaintiffs “was a party drug [illegible] animal.” The handwriting apparently looked similar to that on the pre-jury selection survey form completed by the juror who sent the email.

Not surprisingly, the plaintiff wanted a new trial. Based on the information at this point, it seemed reasonable to assume the juror may have considered online information during trial that may have prejudiced a hypothetical average juror. Thus, the court investigated the potential juror misconduct.

The court’s order says that during post-trial voir dire, “[t]he juror explained that he had found information about two of the plaintiffs on the social networking site, Facebook. The juror that said he gained access to those plaintiffs’ Facebook pages by sending ‘friend’ requests, which the plaintiffs apparently accepted. On the two plaintiffs’ Facebook pages, the juror said that he found pictures that provoked the allegations in his e-mail.”

But the juror claimed he did all of his online research after the verdict had been entered.

As for the similar handwriting, the juror didn’t say whether the handwriting was his, and he couldn’t remember writing the statement.

While the court did find some of the juror’s answers “troubling,” the judge ultimately found “no basis for finding him untruthful in answering the one key question—when he discovered the information.” That is, post-verdict. Accordingly, the court denied plaintiff’s request for new trial.

Beyond the obvious “parties shouldn’t friend a juror on Facebook” lesson here, this case reminds trial lawyers the importance of understanding social media. It seems the juror in this case had a better grasp of the significance of Web 2.0 for evidentiary purposes than the lawyers did.

1 comment:

  1. Thank you for this posting. Clearly, jurors' use of social media to conduct research about a case is causing quite a stir. Kansas, Colorado, New Jersey state or federal courts allow it. Georgia and other states do not. Post trial jury interviews show that despite court admonitions, jurors want to know everything they can about a case in order to make a decision they can be proud of. An admirable goal no doubt. As in the case of other jury trial innovations, we are likely headed toward eventually accepting this tendency of jurors since it is compulsive behavior that is not likely to cease with court instructions. Instead of trying to cure the problem with an instruction, we might try a brief training or orientation session with jurors to quell their desire to look for outside information. We would also be well advised to conduct advance research on the Web to identify the information and sources of information about the case that appear on the Web in order to see it before jurors do and deal with it directly in court.