As a trial lawyer, I read and hear stories regularly about fellow trial lawyers discovering that a previously sworn juror's Facebook page contradicted his voir dire answers or revealed a unfavorable, biased attitude toward the plaintiff's case. Of course, the discovery of the juror's social media persona comes to late to exercise a challenge to remove the juror--often after the not guilty verdict is rendered. many trial lawyers and jury consultants expound on the benefits to investigating prospective juror's social media persona during jury selection. But for the simple auto negligence case a plaintiff's trial lawyer will argue he doesn't have the time or resources to do a social media investigation of prospective jurors. Should the trial lawyer rely on the prospective juror's sworn voir dire answers or harbor doubt about every statement the juror made? The question becomes what is the trial lawyer's duty in regard to investigating to a prospective juror's social media persona during jury selection.
An Illinois appellate court has yet to rule on a trial lawyer's duty to reasonably investigate a prospective juror's social media persona for purposes of vetting the juror during jury selection. Outside Illinois, the Supreme Court of Missouri, has held that a trial lawyer has an affirmative duty to perform a background check during jury selection regarding the prospective jurors' litigation history. Johnson v. McCollough, 306 S.W.3d 551 (2010) In fact, the Johnson decision resulted in a codified Missouri Supreme Court Rule mandating that trial lawyers use technology to research a prospective juror's litigation history after the juror's selection but before being sworn. But importantly, in Khoury v. ConAgra Foods, 368 S.W.3d 204(Mo. App. 2012), the court stopped short of holding that a trial lawyer must also affirmatively investigate the social media postings and background of a selected juror before he is sworn. There, after a juror had been selected, his litigation history confirmed, and then sworn, the defense discovered a day later that the juror had an anti-corporate, biased Facebook page. The denial of the defense's motion motion for mistrial was affirmed stating that the scope of the duty to investigate a juror's background does not include social media profiles. Essentially, the defense's investigation of the juror's social media was too late in time.
If anything, the rule of the Khoury case is that the trial lawyer may not have an affirmative duty to use his technology to investigate a prospective juror's social media profile, but if you are going to do so, then do it before selected jurors are sworn.
On the flip side of the affirmative duty to investigate the social media of prospective jurors, a New Jersey appellate court has held that the plaintiff's trial lawyer has a right to use technology to investigate the social media profiles of prospective jurors. Carino v. Muenzin, 2010 WL 3448071 N.J. Sup. Ct., App. Div. August 20, 2010)(unpublished opinion) There, in a malpractice case, the court granted the plaintiff a new trial for denying the plaintiff's trial lawyer the use of his laptop during jury selection to research prospective juror's on the Internet, because the defense lawyer was not similarly technologically prepared or equipped.
The thrust of the Johnson and Carino cases is that the trial lawyer should be technologically competent and able to avail himself of the Internet to reasonably investigate prospective jurors backgrounds, including their social media personae. Turning to Illinois, the Illinois Code of Professional Conduct relating to lawyer competence imposes an ethical duty to stay competent on use of relevant technology. The Rule provides:
Rule 1.1 To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology,...
Arguably, Illinois's competence rule makes it incumbent on trial lawyers to use technology to reasonably investigate the Internet background, including social media presence of prospective jurors before they are sworn.
As a practical matter, I believe that in any major injury case, where you have invested significant time and money to prepare the case for trial, you can hardly justify not doing a reasonable Internet investigation of sworn jurors before the evidence begins. Many vendors are available to support this investigation. For example, TrialSmith will check the backgrounds, including law suits, of jurors for $12.00 per juror. On social media landscape, a product called Jury Scout searches and monitors a juror's social media profile across approximately 50 social media sites for $295 a search per juror.
Bottom line, as a plaintiff's trial lawyer, your ethical duty, along with your case investment, compels a duty to do a reasonable investigation of sworn juror's background and social media personas at least to discover rogue jurors. You can't afford not to do it.