Trial Lawyer's Blog: Juror DeSelection

Jury Selection: The "Googling Juror" and How to Avoid a New Trial

Posted by Kurt D. Lloyd | Apr 05, 2017 | 0 Comments

For an upcoming trial of a plaintiff's catastrophic personal injury case, I always do focus group research and case framing to develop my trial story.  My trial story is tested and vetted.  Importantly, my trial story absolutely depends upon knowing, in advance, all of the facts and expert opinions the selected jury will hear--and only those facts and opinions.  Hopefully, I have deselected those jurors whose attitudes and experiences can't accept my case facts or my trial story. But more importantly, my trial story has no room for the rogue juror who injects extraneous facts or theories into the my trial story, because that juror decided to do Google research of my evidence, expert witnesses or theory of the case. No one wants a "Googling juror"   A juror who injects false facts or narratives is worse than "fake news."  In this Blog, I want to identify the problem and talk about how I try to avoid either a "Google Mistrial" or a "Google Verdict" for the defense. 

Hero-book
Jury Admonished to Not Perform Internet Research

When I say "Googling juror" I mean the sworn juror who uses Internet searches about the case.  In Illinois, the approved civil jury instructions admonish jurors to not perform any independent Internet research about the facts or issues in the case. Specifically Illinois Pattern Instruction No. 101 includes: 

[6] You should not do any independent investigation or research on any subject relating to the case. What you may have seen or heard outside the courtroom is not evidence....

[7] For example, you must not use the Internet, [including Google,] [Wikipedia,] [[(insert current examples)]], or any other sources that you might use every day, to search for any information about the case, or the law which applies to the case, or the people involved in the case, including the parties, witnesses, lawyers, and judge.

[12] If you violate these instructions, you could be found in contempt of court.

Despite the trial judge's instructions and admonition, in McGee v. City of Chicago, 365 Ill. Dec. 866 (1st D. 2012) a juror had conducted Internet research and brought it into the jury room.   In McGee, a sworn juror's independent Internet research relating to expert opinion testimony on the plaintiff's memory lapse was grounds for a new trial. The plaintiff's verdict was reversed.  McGee is the first reported Illinois case involving a rogue Googling juror.  Clearly, the court's instructions were not effective.

Problem: Googling Jurors Are Epidemic

Juror misconduct involving Internet research during a trial has become a common occurrence, despite the the court's admonitions and the threat of contempt. In November 2015, jury consultant wrote an article published in The Jury Expert about the almost weekly news reports that a litigant had sought a mistrial or challenge to a jury verdict because a juror was caught doing Internet research. Wiley, Jurors Googling & Blogging   

Strategies for Preventing the"Googling Juror"

Nothing is absolute, but I have read and used several strategies for reducing or preventing the risk of the Googling juror.  

One, ask the judge to repeat the jury instructions about no Internet research at the beginning and end of every day of the trial and the penalties for doing so;

Two, with the judge's approval, ask the jurors to sign a "pledge" that they will not research the case on the Internet;

Three, in voir dire, ask prospective jurors if they would be able to abide by an instruction not to research the case on the Internet, and that they would be able to report to the judge any other juror who attempts to share extraneous Internet research;

Four, in closing argument, remind the jurors of their oath and pledge not to do Internet research and the promise to report a rogue juror who is doing so.

About the Author

Kurt D. Lloyd

Kurt D. Lloyd is a plaintiff's trial lawyer who focuses on medical malpractice and other catastrophic injury cases. He lives in Chicago and represents injured clients throughout Illinois. He is also the founder of Lloyd Law Group, Ltd.

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