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BarJournal BUSINESS LITIGATION

JULY/AUGUST 2015
FEATURE Using Internet Research

to Identify Juror Bias

The Dos and Don’ts of “Voir Google”

BY GREGORY P. AMEND

fter investing countless hours In years past, litigants paid private work history, educational background and
of preparation and substantial investigators to gather this type of information. the types of television shows and music they
sums of money, the day has In today’s world, it is free and available at your prefer. With the click of a few keys, you can
finally come. You are going to fingertips — literally. With that being said, I look at a photograph of the juror’s personal
A present your case to a group have been surprised (pleasantly, at times) to residence (if it was recently listed for sale or
of complete strangers and they are going see that not all litigators are not making use rent, you can likely take a digital walk through
to be tasked with hearing the evidence and of it. their home).
adjudicating your case. The overwhelming majority of today’s Notably, certain non-Ohio courts have
• What if one of those prospective jurors is population has a profile on at least one social affirmatively held that it is reversible error for
a first generation “connection” with your media networking site and, therefore, have left a court to refuse to allow attorneys to conduct
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adversary on LinkedIn? a digital footprint for third parties to review. internet research of prospective jurors. Other
• What if they are Facebook “friends” with an Moreover, chances are they were more candid non-Ohio courts gone have gone so far as
important witness in the case? when typing from the comfort of their home, to determine that attorneys waive appellate
• What if they “liked” a recent news article than they will be in a courtroom — subjected review of issues that could have been disclosed
that criticized your client? to the watchful eye of a judge, a room full by conducting internet searches of the jury
I trust that we can all agree that this of attorneys and surrounded by strangers. pool. 2
information would be significant and valuable As such, the digital expressions of your To be clear, online research cannot replace
to you and your client. Some would argue that prospective jurors may reveal and reflect more effective traditional voir dire questioning;
you owe your client an ethical obligation to of their true personal attitudes, values and however, it can be used as a means to mine
obtain this information in order to select the beliefs. Simply put, that digital footprint likely for valuable information that you and can use
most favorable fact finder possible. shines a bright light on their life experiences to make fully informed decisions. Even if the
Given the amount of time and leeway that and potential bias. information that you obtain is not sufficient to
you are afforded to conduct voir dire can Aside from the types of issues identified warrant a “for cause” challenge, it can be used
vary considerably from one court/judge to above, online research can provide you with to more thoroughly evaluate individuals who
another, how confident are you that you will unprecedented access to a wealth of additional, were reserved during verbal questioning and
have the opportunity to elicit this type of and potentially valuable, information when exercising peremptory challenges.
information? Moreover, even if you do ask the regarding your prospective jurors. This With all that being said, there are a
right question(s), how certain are you that the includes information such as their litigation number of ethical issues that must be
prospective juror will give you an answer that history, criminal record, property values, considered and observed. The American Bar
is fully honest and complete? How will you political affiliation/contributions, personal Association and various non-Ohio courts
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know if they don’t? relationships/affiliations, relationship status, and authorities have affirmed that internet
and social media research during voir dire
is proper, so long as the ethical cannons are
followed. Applicable ethical rules prohibit
Services for more than
45 LANGUAGES: ex parte communications, engaging in
•Transcripts/Translations conduct involving dishonesty, fraud, deceit or
•Depositions misrepresentation and/or knowingly making
•Witness Interviews/Expert
Testimonies a false statement of material fact or law to a
•Courts: Civil, Family, third person.
Roxane J. King Juvenile and Probate In an effort to ensure that you conduct
•Immigration
CEO •Private and Non-Profit online research in a responsible and ethical
Organizations
216.765.3700 •Workers’ Compensation manner, here are some tips to follow:
1536 St. Clair Avenue, Cleveland, OH 44114 •Hearing Resolutions • DO review the applicable rules and
info@courtcertifiediu.com • www.courtcertifiediu.com •Arbitration preferences of the venue and presiding judge,
to ensure that you are not running afoul to
any local rules and/or standing orders;
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