Schmidt, Sethi & Akmajian Blog

Social Media Enters the Courtroom--Technology vs. Privacy

Posted by Ted A. Schmidt | Jun 23, 2014 | 0 Comments

The American Bar Association Ethics Committee has ruled it is ethical for attorneys to scour the internet for social media data connected to jurors sitting on their case.  This ruling has potentially broad and far reaching consequences and just reinforces the rule that the wise are most cautious regarding what they post on the internet.  The wisest never post anything that they would not want any living person to see.  Simple rule; tortious for some to follow.

Why is this ruling significant?  First, it should be noted that regardless of whether or not the ABA considers social media research on jurors permissible does not mean that local state bar associations, ethics committees and courts cannot prohibit this activity. In fact, this sort of research is typically prohibited during jury selection in most Arizona trial courts, particularly in Pima County Superior Court and Maricopa County Superior Court.  However, because Arizona's rules of ethical conduct are modeled after the ABA rules the ABA ruling could very well have significant affect ultimately upon Arizona courts and bar associations.

What does this mean to lawyers and innocent citizens called from their daily lives to fulfill their civic duty and sit as jurors? It means creative tech-savvy lawyers with resources when permitted will use sophisticated web searching tools and applications to flush out every bit of information possible about the folks both in the jury pool and especially those ultimately called to sit and decide the case.  Even a relative novice to web research need only “Google” their own name and that of friends and family, look for their public posts on Facebook, Instagram and the like. Besides this, most public records, encumbrances, criminal background, mortgages, name in the newspaper etc. is easily obtained quickly. The potential profile the lawyers can create on each prospective and sitting juror could be prolific.

Similarly, during the trial, according to the ABA ruling, it is permissible to continue to follow jurors publicly on social media through to verdict.

So what of this ruling and likely trend in our ever growing technological world where our privacy evaporates with each advance?

Well, the bad is of course that our personal lives become less and less personal and we must be ever more circumspect about what we share on the web.  The good is that lawyers in the know will be able to more intelligently select the best folks to sit on the jury for their particular case and at the same time will be able to keep them honest throughout the trial when the judge instructs the jurors they are not to use social media or do research on the case on the internet or otherwise.

For more on this story, check here.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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