Making Savvy Social Media Choices

A fact about litigation is this – one of the most important parts of any trial begins before the trial itself. Jury selection is a critical component of the outcome of any trial, and if you are an attorney who regularly litigates, it is likely that you already know this simple truth.

Traditionally, jury selection in both civil and criminal trials depended heavily on the attorneys on both sides of the case being provided the opportunity to question potential jurors through voir dire. Without question, voir dire is important, as it affords counsel the opportunity to expose any potential biases or prior knowledge that a juror may have about a case. Often, even answers to questions about seemingly innocuous topics, like favourite books or television shows, religious affiliations, which news stations they watch, or which social activities they participate in provide important indicators of how likely a potential juror might be to keep an open mind, what biases he or she might have, and how they might ultimately decide a case. For as long as attorneys have been practicing law, they have relied on this information, as well as on observations of things like body language, appearance, facial expressions in response to questioning to select a jury that they believe will be best suited and sympathetic to their case.

Without question, these components of voir dire remain an important, critical part of the jury selection process. However, with the continuing rise and ever-increasing popularity of social media, the truth of the matter is that the jury selection process is changing. It is currently estimated that Facebook has 1.5 billion daily users. In any given minute, there are an estimated 347,222 people scrolling through Instagram, and Twitter has approximately 326 million monthly active users. The average amount of time spent daily by users in total on social media is 116 minutes[1]. It goes without saying then, that in that time, amongst all of those users, a significant amount of content is created each and every day.

Understandably, the continual and ever-growing use of social media by all segments of our society has greatly changed the process of juror selection. Thanks to the rise of social media, no longer are attorneys limited only to reviewing the information that jurors voluntarily make available to the court, or to information painstakingly gleaned from question after question, or from tedious investigatory practices that can be time-consuming and ultimately produce little byway of result. Today, thanks to social media, a simple internet search, or review of a Facebook page or Twitter account can reveal tremendous amounts of helpful and telling information.

Ethical Enquiries

From an ethical standpoint, the American Bar Association model rules affirm conducting passive searches of social media profiles and internet sites when researching jurors[2]. The ABA issuedFormal Opinion 466 in April of 2014. In that opinion, it discussed the ethical implications of social media research on jurors. After reviewing the potential avenues for social media investigation, the opinion concluded that the “mere act of observing” a potential juror’s social media sites is not improper ex parte contact with a juror. In making that determination, the opinion likened reviewing a juror’s publicly displayed material to driving down a juror’s street to get a sense of his or her environment, which would not ethically be considered improper.However, the opinion did note that asking a juror for access to his or her social media, by“friending” them on Facebook for example, would improper and likened to stopping the car and asking to look inside the juror’s home.[3]

Thus, it seems clear that while attorneys cannot “friend” potential jurors solely for the purpose of looking at their private material, much valuable information can still be gleaned from what is publicly displayed, and can be done in an ethical manner. As the ABA has noted:

Social media profiles, blogs, and chat rooms provide additional information that traditional sources of query cannot. Although voir dire and jury questionnaires can uncover many concerning issues, one also should take advantage of technological advances such as social media sites to assess potential jurors, including determining whether to strike for cause[4].

Indeed, just a sampling of the information that can be gleaned from a juror’s publicly displayed Facebook site can include significant and telling information that may be useful in ultimately making a decision on selection (or not) of that particular juror. That information can be very valuable in any number of ways.

Practical Applications

Take, for example, a recent toxic tort trial, a firm received a list of names of persons called for jury service on the morning of the first day of trial. The firm entered the names of the jurors into a shared spreadsheet that was accessible to the team of attorneys and paralegals on the case.Each attorney then reviewed all accessible social media and then entered the information into the shared spreadsheet, which was then shared in real-time with the trial team in the courtroom during voir dire.

In that particular case, the team found a woman on the panel who posted multiple links to scientific articles on her Facebook page, which made her a very favourable juror for that particular toxic tort trial, in which medical causation was the primary defense. On the other side of the coin, the team found a man with anti-corporate posts on his Facebook page, which indicated that he would likely be an unfavourable juror in that particular case. In both examples,the team was able to gather information that would have otherwise been unavailable through normal voir dire tactics[5].

In another trial, that same firm was able to determine that a venireman in a personal injury case provided mistaken (or knowingly false) information in a jury questionnaire with respect to the issue of whether he had previously been a party to a lawsuit. The team found information on his Facebook page that he had earlier been involved in a personal injury lawsuit, which information was then confirmed in the court’s database of cases. That potential juror was then stricken on the basis of that information[6].

Pressing Preservation Issues

These cases, and many others like them, are indicative of the extreme value that social media can provide with respect to the jury selection process. Ultimately, however, the value of this information only extends as far as your ability to preserve it until the time that you need it, and a simple truth about social media is that the information posted can often be very fleeting and temporary in nature.

Why is this the case? As people, we are, by nature, emotional. A simple truth of human nature is that people like to talk, and vent, and post what they’re thinking at the moment they think it. In our modern digital age, almost without thinking twice about it, many turn to social media for exactly this purpose. This is not even to mention the fact that many people are simply very used to posting about their daily lives on social media. Photos, comments, videos – all are shared liberally and often, sometimes without much thought as to the implications or consequences of those postings. However, as people often do, with the benefit of time – even if it be only a few hours, those same postings are often altered and deleted.

As a result, and as a litigator, it often becomes vitally important to capture the content that you need while it is still present on the social media account that you’re reviewing. Doing so could make a difference between choosing a juror that is a good fit for your case – or being stuck with one who isn’t. The question is, how to best go about capturing the evidence you need, at the moment you need it? WebPreserver is the answer.

Why WebPreserver?

We know that as an attorney who values a reputation for excellence, you want to provide the best representation to your clients in each and every case that you litigate. That focus on excellence begins at the very beginning, and in order to effectively gather the social media content you need to make the best jury selections, you need to know that you can rely on a tool that will capture that content efficiently, and effectively, every time. WebPreserver is that tool.

When you use WebPreserver, you capture content instantly, at the moment you need it, in an organized format that can be easily used for whatever purpose during litigation – whether it before voir dire, or as evidence for your case-in-chief. You can be assured that each and every capture made with WebPreserver is forensically sound.

Furthermore, when it comes to authenticating online evidence, the fact of the matter is this: there is no substitute for the truth of technology. With WebPreserver, all of the technology you need is at your fingertips. There is no need to manually collect Metadata, no need to rely on an affidavit alone, which may or may not hold up in court. When you use WebPreserver, you are using a product that generates forensic reports with a forensic SHA256 hash, and HTML source code.

Call us today to discuss deploying the WebPreserver Plug-in so that you can begin gathering the evidence you need, when you need it. Don’t litigate another case, or select another jury without the benefit of having the content you need to make the smartest, savviest choices on behalf of your clients. You’ll be able to capture the evidence that you want, with the assurance that when you do, it will be organized, easy to access, and maintained in pristine, recognizable, and in easily exportable formats. With WebPreserver, preservation is not only automated and reliable, it’s also safe and efficient. It’s the smart choice. Call us today!

[1]https://www.zariance.com/reads/social-media-statistics/
[2]https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_466_final_04_23_14.pdf
[3]Id.
[4]https://www.americanbar.org/events-cle/ecd/ondemand/277399490/
[5]https://www.lexology.com/library/detail.aspx?g=eff05461-18a3-4168-8a0e-13197b211f35
[6]Id.