The theme of this week’s PLAC (“Product Liability Advisory Council”) Spring Meeting is social media and its impact on product liability litigation. That’s given us some ideas for posts down the line, but one of the presentations was about what to do (if there’s anything that really can be done about jurors who use social media, or the Internet generally) after they’ve been sworn in as jurors during the course of the trial. Such juror (mis)conduct runs the gamut from using the Internet for independent research – independent juror research being a long-time no-no that the Internet makes so much easier to do – to tweeting, blogging, etc. about the case, or even their own vote or deliberation
Stories about jurors doing this sort of thing are quite common these days. Sometimes it’s a matter of jurors simply taking their online habits for granted and not realizing there’s anything “wrong” with telling all their Facebook friends about this latest activity. Other times it’s a juror who’s bound and determined that s/he’s not going to let lawyers and judges keep him/her in the dark about what really happened. The latter mindset probably should not have been let on the jury in the first place, but jury selection is fundamentally an art, not an exact science.
Courts have been struggling with how to deal with this, and one obvious approach (short of confiscating devices or sequestering the jury in an unwired facility) is our old friend the jury instruction. Anyway, one of the PLAC presentations was on the various jury instructions that courts have used to tell jurors that they shouldn’t google the lawyers, check out internet maps of the scene, tweet about what the jury’s doing, or put the case up for a vote on Facebook. The best one we saw was a proposed civil instruction on the Internet that’s scheduled to go into effect in New Jersey next month. Here’s a copy of it as it appears on the New Jersey courts’ website for this sort of thing. We like this one best because, not only does it tell jurors that they’re not supposed to google, blog, tweet, etc., but it explains to them why internet self-help and social media is considered inconsistent with a juror’s function.
Juror use of the internet and other social media creates problems for the jury system and for both plaintiffs and defendants in all sorts of cases, not just product liability. Not only does it implicate the deliberative process, but it costs time, money, and finality, as it becomes yet another tactical weapon for lawyers to use when they don’t like a verdict. Addressing it is something about which most judges would welcome bright ideas from both sides. So we’re happy to offer the New Jersey proposed standard instruction as something of a “best practice” that other courts might want to emulate.