Page 8 - November 2018 | Cleveland Metropolitan Bar Journal

• DO pre-plan and strategize about the type • DO continue to monitor the social media
of information that you are interested in accounts of jurors to ensure that they are
learning about your jurors, which will abiding by the court’s instructions;
likely prove to be case specific, so as to • DO NOT engage in any conduct that
avoid being overwhelmed by irrelevant could be perceived as communicating with
information; potential jurors. This includes “friending”
• DO make arrangements to have a reliable prospective jurors, “liking” pictures/posts,
internet connection and appropriate “following” juror accounts and engaging in
staffing to conduct research while you are direct messaging;
handling the task of traditional voir dire; • DO NOT attempt to gain access to non-
• DO proactively attempt to avoid leaving public social media content by using
a digital trail and stay as anonymous/ deception, dishonesty, deception, pretext or
passive as possible, by engaging trickery; and
appropriate privacy settings on social • DO NOT expose/discuss personally
media platforms like LinkedIn; sensitive information in open court.
• DO consider requesting that the Court Consider exercising personal restraint and
instruct the jurors that the attorneys may — if absolutely necessary — only do so in
conduct online research and affirm that a private and respectful setting, at side bar.
OVER 25 YEARS OF such conduct is proper;
PERSONAL INJURY, • DO consider questioning the panel The value of social media in the modern
MEDICAL MALPRACTICE, regarding their use of electronic media courtroom is not limited to jury selection; it
AND AUTO / TRUCKING and participation in the various social can also prove relevant to a number of other
CASES media forums (Facebook, Twitter, issues such as changing of venue and declaring
Instagram, Youtube, etc.); mistrials as a result of juror misconduct.
• DO immediately inform the trial judge if In summary, using internet research
216.223.7535 online data reveals that a potential juror, during the voir dire process can provide you
or selected juror, made misrepresentations
with unprecedented insight into information
ROBENALTLAW.COM or failed to disclosure material facts that can be used to identify and assess the
during voir dire; bias of potential jurors. Recognizing the
applicable ethical considerations, every
There’s 2 types of phishing attacks litigator should be utilizing this information
to vet their prospective jury pool. If you
fail to do so, you are doing your clients

a disservice and likely providing your

adversary with a preventable advantage.

1 Carino v. Muenzen, 2010 WL 3448071 (N.J. App. Div. Aug.
30, 2010).

2 Burden v. CSX Transp., Inc., 2011 WL 3793664 (S.D.Ill. Aug.
24, 2011) (holding that defense counsel in a personal injury

action waived objections to two juror’s false statements and
non-disclosures during voir dire by failing to conduct internet
searches that would have disclosed said information); see also
Johnson v. McCullough, 306 S.W.3d 551 (Mo. 2010) (impos-
ing a per se rule that Missouri trial lawyers are required to
conduct certain internet specific searches about jurors after
jury selection but before the jury is empaneled).
3 ABA Standing Committee on Ethics and Professional Re-
Phishing - Generalized Attack: Sent to Many People, Contains sponsibility Formal Opinion 466 (2014); Pennsylvania Bar
Association Formal Opinion 2014-030; Oregon Bar Associa-
Link (s) to Malicious Sites. Goals: Steal Credentials, Steal Credit tion 2013-189; Sluss v. Commonwealth, 381 S.W.3d 215 (Ky.
2012); Bresler v. Wilmington Trust Co., 2013 WL 12204287
Card Information, Steal Banking information (D.Md. 2013).
Spear Phishing – Targeted Attack: Target is Researched, Target
is Personalized. Goals: Account Takeover, Business Fraud, Gregory Amend is a partner with
Advanced Malware Buckingham, Doolittle & Burroughs
LLC and a member of its Litigation
Solution: Barracuda’s Total Email Protection Practice Group. He has extensive
experience litigating complex

business and commercial issues in various State
440.892.9997 and Federal Courts and a variety of arbitration
info@msmctech.com forums. Greg has been a CMBA member since
2006. He can be reached at (216) 621-5300 or

gamend@bdblaw.com.
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