Jury Research Solutions

• Collect All Wireless Devices.  In addition to our existing instructions for jurors not to search the Internet for information beyond what is being presented during or after the proceedings, we have taken a significant measure to ensure the confidentiality of our mock trials/focus groups.  That is, given the many features of these devices (audio recorders, cameras), we have been concerned that someone could surreptitiously record the presentations or photograph documents.  Therefore, for our jury research projects, we collect all wireless data transmission devices such as mobile phones, Smartphones and cameras from mock jurors during our “court” proceedings. 
  
  
• Change Names.  While we cannot guarantee that a juror will not breach the project’s confidentiality, we do our best to thwart any attempts.  That is, to prevent jurors from researching any information about the presenting lawyers outside of the courtroom, we recommend to our clients that the presenting attorneys alter their names, particularly the attorney portraying the “opposing side.”  Also, in instances where the presenting attorneys are members of the same firm, this strategy prevents jurors from learning “plaintiff” and “defense” attorneys are colleagues. 

Trial Solutions

• Written Instructions with SJQ.  When sending out SJQs in advance of jury selection, or even when jurors are completing them at the courthouse, it is critical to include within the introductory instructions that Internet research of any kind is prohibited, the reasoning why and the consequences of that action.  If a juror doesn’t understand a question or any terminology, etc., they should be instructed to consult the clerk of court or note their uncertainty on the SJQ itself.  
  
  
• Include Questions about Internet Habits.  On the SJQ, as we have previously recommended in our Volume 7 Insights, include questions related to whether jurors have websites, blogs, social media sites, etc.  This will give you an opportunity to research their sites to learn more information about the ir attitudes and activities.
  
  
• Judge’s Instructions.  In court, prior to voir dire, it will be important to incorporate updated language into the judge’s introductory and continuing remarks that directs jurors not to search the Internet for any information about the proceedings, including researching definitions of the legal terms, the parties, etc.  In a recent case in Missouri, the judge admonished the jurors before voir dire, and at every break, not to use the Internet to do any independent research or to make remarks about the proceedings via any social media sites.  We provide a sample instruction that has been used during trial.
  

• “I hope that for all of you, this case is interesting and noteworthy.  I know that many of you use cell phones, Blackberries, the Internet and other tools of technology.  You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any Internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn and YouTube.”
  
  
• Suspend Websites.  Again, because no one can control what a juror will actually do, innocently or intentionally , we recommend a motion to the judge to pull down all relevant websites, particularly any the plaintiff’s attorney may have posted to garner more clients on the alleged defective product, etc. 
  
  
• Ask On-Point Questions in Voir Dire.  Because the rules of the Internet are ill-defined and potential jurors do not understand the gravity of conducting research online or commenting about their jury service on Twitter, it would be wise to develop a line of questioning, when tied to the burden of proof that assesses jurors’ Internet and social media habits.  For instance, “The judge sent out the SJQ in advance to each of you to complete and send back.  This is to help make the process more efficient.  However, did anyone follow up on any information within the SJQ?  That is, did anyone happen to research a definition, phrase or company name?”
  
  
• Search for Potential Jurors Online.²  Many jurors are online themselves and, much like information about cases and our clients, not all information online about jurors is helpful.  For example, in a pool of 100 jurors, chances are that the majority of them either won’t be searchable online, or will have completely irrelevant information to what you would need.  However, on the chance that you’ve found that one juror who is blogging about your case, or has misrepresented themselves in court, this type of research could save a lot of time, effort and a mistrial in the end.

Conclusion
What the current internet/social media statistics are telling us is that the way we receive information is ever-changing and the vast majority of jurors will have access to the Internet and social media networks.  The ways in which, and the speed with which, we receive information is now a game changer in the legal arena.  The solutions we have today may not hold six to 12 months from now.  We will need evolving solutions for evolving problems derived by social media phenomena.

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2  At Litigation Insights we feel strongly that there are ethical considerations to adhere to when searching for jurors online.  For example, we never “friend request” a person whose profile we cannot see.  We feel this is jury tampering and a deliberate misrepresentation of intention.