Wednesday, June 13, 2012
How lawyers might manipulate jurors by planting misleading info about a pending case on blogs and websites
An excerpt from the New York Law Journal (subscription required):
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Although public perception of jurors' Internet misconduct has grown, little attention has been given to the potential threat to a fair trial posed by various forms of attorney communications posted on lawyers' websites, blogs and other Internet outlets. These may be calculated to influence prospective or sitting jurors about a particular litigation.
An attorney (or her agent) could rather easily "deposit" one-sided, misleading, self-serving, extraneous or prejudicial, case-related information onto sites that curious jurors could "find" using simple Google searches. This article alerts readers to this emergent, yet potent, danger.
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Could case-involved lawyers (or their agents) deposit messages about case facts or party litigants or extraneous, nonadmissible information on websites, blogs or other Internet locations? Could they do so in a manner that would allow a straying juror to find the information? Yes, they can—especially if the opposing lawyers are oblivious to the potential threat or too lazy or slothful or careless in doing their due diligence when preparing for trial. Indeed, experience shows that one of the popular items of juror Internet research is to find out more about the courtroom attorneys. Prospective or sitting jurors can peruse the attorney's website noting biographical information, the firm's specialties, featured clients,and the "war stories," crusades or victories many firms describe. That information likely will be passed to other jurors.
Could a litigator anticipating a trial, say, three months ahead, post information on his site about the pendency of several of his "big" cases including the one upcoming? And in describing the matter, could the site make skillful, self-serving statements about the merits of the case or his client's misfortune or the villainy of the opposing party? Could the lawyer tout his expertise and past success in obtaining large verdicts in similar cases against the same defendant or against other defendants in the same industry or in similar exposures? And what if some portions of the message were untrue, incomplete, exaggerated or misleading? Would such postings be permissible, as an exercise of First Amendment rights? Well, if the information is not researched and scrutinized by opposing counsel, if the statement's accuracy goes unchecked or unchallenged or the matter is not brought to the attention of the court in some appropriate application for relief, then the issue will be largely academic. The message may sit there by default waiting for the curious juror to find it and share the nugget with others.
Continue reading here.