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“Should I Google the Jury?” and Other Ethical Considerations

By Sarah Grider Cronan and Neal F. Bailen


Today’s trial lawyer faces more ethical challenges than ever before. The rules of professional responsibility provide guidance in many situations, but there continue to be substantial gray areas as to appropriate behavior between lawyers and jurors within the confines of the courtroom. This leaves many lawyers struggling to find the proper balance between zealous representation and ethical conduct.


The following anecdotes provide guidance for appropriate communication and interaction with jurors before, during and after trial. These situations may arise in your next trial and pose fine-line questions between advancing the interests of your client and committing an ethical violation.



Googling the Jury


Can you take advantage of internet search engines like Google to learn about your jurors? Yes. A lawyer may investigate prospective jurors to uncover any basis for challenge as long as she does not communicate with jurors or their family members, or conduct a vexatious or harassing investigation. [1]


Your Google research may reveal a juror is a competitive fisherman, a member of a local animal rights organization, or an avid runner whose time appears in the online results for the Boston Marathon. Section 19(b) of the American College of Trial Lawyers’ Annotated Code of Trial Conduct addresses only the investigatory phase of juror research, leaving it unclear how you can actually use the information once you have it.


Would it be improper to drop a fishing metaphor into your opening statement, such as “It’s kind of like when you almost have that fish in your boat; the foreman at my client’s construction site had spent four hours wrestling with the crane wire, had patiently adhered to each and every industry operations standard, but then—boom!—the line broke. And unfortunately the plaintiff got hurt.” Perhaps you would be crossing the ethical boundary by virtue of the expected perception or reaction of the juror to these comments. If a juror could reasonably believe that you are “watching them,” then it follows that they may feel duress. Thus, any implied pressure that a juror may feel, whether deservedly or not, should be avoided.



Is the Jury Googling You?


You may not be the only one using the internet to gather outside information. Just as you might use Google to gather information on your panel, the jury may be searching for information on you and your client. Perhaps jurors are visiting your website after voir dire but before trial begins. Is it unethical when creating a firm website to have both prospective and current jurors in mind? What about setting up during trial a temporary section on your firm’s website providing testimonials from former clients regarding victories over defendants similarly situated to the one you now face?


Jurors may find greater credibility in third-party information that does not come from your website. Many postings on internet bulletin boards show up in the results list of web searches. Would it be unethical for a lawyer to advise a client to post anonymously on internet message boards related to the case so as to make it seem like the matter involves a widely-perceived wrong that needs to be righted?


The rule seems clear: lawyers are not to communicate directly or indirectly with prospective jurors before trial. [2] Additionally, ABA Model Rule 3.5(c)(1) provides that a lawyer shall not seek to influence a prospective juror “by means prohibited by law.” It is one thing to be aware that jurors may be visiting your website and design it accordingly. But it is probably quite another to adjust it based upon current cases on the docket or to encourage your client to populate the internet with sympathetic messages. To a trial court, this may seem like improper, indirect communication.



The Golden Rule


The internet, video games, virtual reality and anonymous chatrooms have created a world where it is easier than ever—and even encouraged—to pretend you are someone you are not. The same does not apply in the courtroom. A plea to the jury to follow the age-old “golden rule” adage and put themselves in the shoes of your client and “do unto him as they would want done unto them” is improper because it encourages the jury to depart from neutrality and decide the case on the basis of personal interest and bias rather than the evidence.


The Fifth Circuit found that a plaintiff’s counsel violated the rule on the golden rule during closing arguments when he said to the jury: “This twenty-three year old needs a back fusion. He will go through pain and suffering. . . I want you to close your eyes when you go in the back, please, and put yourself on a rig as a twenty-one year old making $37,000 a year.” [3] The court nonetheless held that this was harmless error because the trial judge instructed the jury to ignore the statement following defense counsel’s objection to plaintiff’s invocation of the golden rule.



Post-verdict Communications with Jurors


Some jurors may be earning more than $12 a day. In addition to their daily stipend, some jurors may be viewing jury duty as a means to a potential paycheck. Lawyers involved in the Vioxx litigation have paid Texas jurors from the first Vioxx trial, in which $253 million was awarded to the plaintiff, to find out what arguments worked and what did not. [4] In a teleconference sponsored by Mealy’s, four jurors from the Ernst v. Merck trial were each paid $199 to answer questions from trial lawyers on both sides about how they came up with $229 million in punitive damages. [5]


A juror has no obligation to discuss the trial or deliberations. In jurisdictions where lawyers are allowed to speak with the jury after the verdict, a juror’s decision to talk with a lawyer is solely up to the juror, and a lawyer should explain this fact to the juror. If the juror makes it clear that she does not want to discuss the case, a lawyer cannot try to change her mind. [6] But if a juror is wavering on whether to share her thoughts following a trial, nothing prohibits a lawyer from trying to convince her to talk, as long as there is not misrepresentation or harassment.



The Runaway Juror


In this day of high profile trials á la O.J. Simpson or Martha Stewart, it can be profitable to serve on a jury with potential book deals, and maybe someday soon, reality show appearances. This provides more of an incentive for jurors to be less than forthcoming about their backgrounds so as to survive voir dire. For this reason, more lawyers are performing background checks of potential jurors in high profile cases.


Some states, such as New Hampshire, Iowa, and Indiana, mandate that if background checks on jurors are conducted, the information must be shared with both sides. [7] Other states such as Virginia and Georgia have granted broader latitude to prosecutors and do not require findings shared with the defense. [8] A federal judge in Illinois recently barred prosecutors from conducting background checks of prospective jurors in a corruption trial involving high-ranking Chicago city officials. [9] Because each state’s law varies on this issue, it is advisable to check the rules for your judge and/or jurisdiction.



Flattering the Jury


In recent Vioxx litigation, attorneys for Merck unsuccessfully requested a mistrial after the plaintiff’s attorney announced during a news conference that the plaintiff had written letters which were to be given after the trial to the jurors thanking them for their service. Lawyers for Merck asked for a mistrial, claiming that by “trumpeting his client’s preparation of such letters to the media, [plaintiff’s attorney] has essentially ‘delivered’ them in advance. [The attorney’s] gratuitous comments to the media are a transparent attempt to improperly influence the jury by suggesting his client is personally thankful for their efforts while Merck is not.” [10]


Lawyers are to avoid attempts to “curry favor” with jurors, which may include expressing concern for their physical comfort during a trial. [11] ABA Model Rule 3.5(a) states that “a lawyer shall not seek to influence a judge, juror, prospective juror or other official by means prohibited by law.”


But where must lawyers draw the line? What about referring to jurors by their names or making comments such as “I appreciate your patience, ladies and gentlemen” or “You have been an exemplary jury”? A Pennsylvania federal court found that a plaintiff’s attorney exhibited “unprofessional solicitude” towards the jury when he smiled and waved to the jury, told the jury to “have a nice weekend,” and asked the judge whether he was going to recess at an earlier time in order to accommodate a juror’s transportation problem. [12] In some jurisdictions, referring to jurors’ names during closing argument might constitute an attempt to curry favor with the jury. [13]


In conclusion, the modern trial lawyer has tremendous access to technology, information and the media. Knowing how to harness the power of each can provide great advantage when trying your case and in communicating to the jury. And while the rules and boundaries are not always clear, the modern trial lawyer should be cautious, but not afraid, to blaze new trails in order to zealously represent the interests of her clients.


 

FOOTNOTES


  1. American College of Trial Lawyers, Annotated Code of Trial Conduct, Rule 19(b) (2005) [referred to hereinafter as Ann. Code of Trial Conduct].
  2. Ann. Code of Trial Conduct, R. 19(b) and (d).
  3. Brown v. Parker Drilling Offshore, 410 F.3d 166, 180 (5th Cir. 2005).
  4. Sylvia Hsieh, Vioxx Jurors Hired to Prep Lawyers for Future Cases, Kansas City Daily Record, Nov. 26, 2005.
  5. Id.
  6. ABA Model Rules of Professional Conduct, Rule 3.5, Comment 3.
  7. Tresa Baldas, Now in Foreground: Jurors’ Backgrounds, The National Law Journal, May 5, 2006, at 1.
  8. Id.
  9. Id.
  10. Judge Rejects Merck’s Motion for Mistrial Over Letters to Jurors, AP, March 31, 2006.
  11. Ann. Code of Trial Conduct, R. 19(i); see also Mississippi Bar Association Professionalism Handbook, Rule 3.5(b), Practical Observation Number Six (noting that it is the duty of the trial judge, not the lawyer, to see to the jury’s comfort).
  12. Johnson v. Trueblood, 476 F. Supp. 90, 96 (E.D. Pa. 1979).
  13. Tennessee v. Trotter, 1985 Tenn. Crim. App. LEXIS 3027, at *4-5 (Tenn. Crim. App. 1985) (unpublished) (holding that issue of prosecutorial misconduct was waived by defense counsel’s failure to object during trial, and stating in dicta that while mentioning jurors by name during closing arguments is poor policy and conduct to be cautioned against, the prosecutor did not address the jurors directly, and thus prosecutor’s conduct did not exceed the bounds of reasonable advocacy).

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About the Author

Sarah Grider Cronan is a member and Neal F. Bailen is an associate with Stites & Harbison, PLLC in Louisville, Kentucky.

 
 

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