Social media can be a liability for attorneys. Yet, many have yet to master the rules to stay out of trouble.
Using social media in a legal setting is a serious issue that it is being researched. A study was conducted titled “Ensuring an Impartial Jury in the Age of Social Media” for the Duke Law & Technology Review. The research provided examples of juror misconduct and discovered that the jurors surveyed take social media instruction seriously. Out of 140 jurors, “only six jurors reported any temptation to communicate about the case through social media.”
To prevent a mistrial or prejudice, the court has to make sure that there are specific social media instructions given to the jurors. Also, attorneys need to be aware of how social media affects the fairness of a trial. Here are 5 things to keep in mind:
1 – Facebook. The company’s website says there are more than 900 million daily active users. Posts can be quickly shared and “liked.” Smart phones make it easy for jurors to take photos and videos, and post them on social media sites.
2 – Twitter. Even though each post is just 140 words, one “Tweet” can be quickly re-tweeted, “favorited,” or quoted.
3 – Google. Jurors have to be reminded to not do any online searches about the case or parties involved. Rhonda Jensen, who is president of Jensen Litigation Solutions, says “In one manslaughter case, the juror, a former biology professor, was ‘not impressed’ with the medical examiner’s testimony as to cause of death, so he conducted his own research via the Internet to determine an alternate cause of death, which he then shared with the other jurors.”
4 – Voir dire. Rhonda also recommends attorneys do online research to assist with the jury screening process. She says the rules are not clear about doing research. However, she cites Federal Rules of Civil Procedure (Fed. R. Civ. P. 26(b)(3)), which “state that any materials created in preparation for trial is considered attorney work production,” so the lawyer does not have to disclose the findings.
5 – Reputation. Are you being diligent about your own case? Whatever you say in the media–whether you’re being quoted online, in print, via broadcast, or on social media, could be used against you.
Anything that is posted on social media by jurors, people in your own firm, or your clients doesn’t necessarily disappear, even if you delete it. That’s because anyone can take screenshots of what was posted and share it across the Web.
A version of this article first appeared at the Law Firm Consultants Network of Chicago.
