This report from an Arkansas trial closes the book on a recent clash between new media and jury trials. The trial judge ruled that a twitter users tweets were in bad taste but did not amount to misconduct. He declined to grant a new trial to Stoam Holdings, a building materials company.
Twitter, Facebook and Google present enormous challenges to trial lawyers. The problem arises from the need to base case decisions on the evidence in the courtroom. In the early years of my career, judges simply instruced jurors not to drive by accident scenes, make independent inquires or perform out-of-court research. I suppose I could be naive, but I think that jurors generally complied.
I imagine that jurors simply don’t or won’t anymore. They can Google and facebook witnesses. They can send tweets. In short, they can and will refuse to follow the instructions that the only evidence worthy of consideration is the evidence presented in the courtroom.
While I imagine that many jurors would snort at the notion, there are good and important reasons for the rules. Lots of evidence is out of bounds because it doesn’t meet the standards of admissibility. But there’s a more subtle reason for the rule. When evidence is presented in the court room, both sides have the ability to challenge its validity and interpretation. When it’s located as a result of a juror’s out-of-court search, it may be accepted as valid without the ability to truly challenge the evidence.
Take the simple example of a Web MD search. Here is the link to a Web MD article on neck strains. It’s easy to locate, and it provides all sorts of good information about the problem of neck injuries that typically occur in motor vehicle collisions.
But that Web MD information tells you nothing about Ms. Jones the hypothetical person whose claim may be tried next week. Relying on that information without explanation from Ms. Jones treating doctor might lead to misinterpretation of the information or misapplication of the general concepts.
Short version is that the juror who has gone off on a lark has Googled his or her way to a potentially misleading result. That’s the most important reason for the rule.
The twitter case linked at the beginning is just a start. I imagine we’ll see radical changes to the way we try cases because of the access to technology.
In injury cases, the insurance company defending the case generally has the ability to obtain a medical exam from a doctor that it selects. These are often labeled “independent medical exams.” Here, the New York Times does an admirable job of highlighting problems with insurance medical exams. One of the doctors interviewed by the Times reporter makes clear that he intentionally falsifies medical exam reports in order to get exam business.
The key to the unraveling of the exam reviewed in the Times was a video of the examination. It did not match the doctor’s report.
Video should be a no-brainer, right? Interestingly, some judges allow videotaping of exams and some refuse it. Lawyers for the patient generally argue that a video record provides the best means of independently checking on what happened in the exam room. This article provides a concrete example of why video is essential.
Juries are inclined to believe people whose first names are “Doctor” when the doctor is explaining what he or she found on examination. For that reason, it’s especially important to be able to discredit a doctor who is nothing more than an insurance company hired gun.
Back in Oregon, the insurance medical exam problem is a mixed bag. To be sure, there are doctors who are honest and straight and are not afraid to say when a patient is truly injured. But Oregon has its own share of doctors who are beholden to the insurance companies whose opinions consistently come out against the injured patient.
Good article here on a growing practice. Trial lawyers use the internet to find out background on potential witnesses, potential parties, and even potential jurors. This includes social networking sites to find out what the real story is on someone involved in a case. The article raises questions about whether it’s ethical to dig into potential jurors’ internet postings. Assuming there’s no hacking involved, I don’t see any problem finding out as much as I can about a potential witness or juror.
I can learn a lot more about a person from reading her MySpace page than I can from the stifling and artificial question and answer session of jury selection that goes on in the courtroom.
The interesting part from the perspective of those of us in the trenches is the time clash. Depending on the local rules, trial lawyers frequently don’t get names of prospective jurors until the beginning of jury selection. And often those are called out orally in open court, and you’re scrambling to record the name. Then, you might little or no time to question prospective jurors before deciding on whether to challenge or strike a potential juror. It’s that short window of time that is the most important to look for background.
Imagine that there are maybe 30-50 potential jurors being interviewed with decisions to be made in a matter of hours, sometimes less. The bottom line is that it’s very hard to do effective background searches under these conditions. Even so, we all try because a toxic juror who does not disclose bias in jury selection can unfairly destroy a case.