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Twelve Angry Tweeters: The Effect of Twitter on the Jury System

By Bill Haltom

When I first heard my fellow lawyers using the word “Twitter,” I thought they were referring to the little birdie who costarred on the Bugs Bunny Show ("I taught I taw a putty tat!") or a famous country music singer ("Hello, darling! Nice to see you! It's been a long time!") Recently, a young female attorney asked me whether I twitter, and I was frankly embarrassed. Without hesitation, I replied, "Young lady, I will have you know that I have been happily married for 28 years."


On another occasion, this same young lawyer asked me if I had ever googled myself, and I was just too shocked to respond.


Well, I have now learned that Twitter is simply the latest and quickest means to send out a written message to your friends. Interestingly, I learned this from Senator John McCain. No, the senator and I are not Facebook buddies. In fact, I am an ole yeller dog democrat who is supporting President Obama in the hopes that he will make me the beneficiary of a federal bailout. I would even be willing to cap my pay at a half million bucks a year.


While Senator McCain did not send me a text message, I saw a report on CNN about how the senator is now using Twitter to send out quick, concise messages to his “followers.” Upon further investigation, I found that Twitter is a website where you can “tweet” short messages (140 characters maximum) to anyone who has signed up to receive them. It is apparently a cross between a blog and an old ham radio.


Thirty years ago, in the classic motion picture Smokey and the Bandit, Jerry Reed would get on his CB radio and ask Burt Reynolds, "Hey, Bandit, you got your ears on, good buddy?" But if Hollywood were to make yet another sequel (Smokey and the Bandit XXV), old Jerry would "twitter" the Bandit and ask, "You got your BlackBerry on, good buddy?"


Twitter is but the latest phenomenon in "short-attention span America," a nation in which everybody over the age of two has to be entertained constantly. We all walk around clutching our BlackBerrys and our iPhones, googling each other, which, as an old Baptist, I still firmly believe is something people should not do until they are married.


All this tweeting, texting, and googling would be bad enough, but it is now starting to have an impact on the American legal system. Why? Simple. Care to guess who’s doing a lot of tweeting these days? Jurors. You read that right.


According to a recent article in the New York Times (which I read on my BlackBerry while sitting in court), jurors in trials across the country are being caught googling and tweeting when they are supposed to be listening to the proof. And some are even blogging reports from the jury box.


Recently, a federal judge in Florida declared a mistrial after no less than nine members of the jury admitted that during the course of the trial they had been doing Internet research on their iPhones and BlackBerrys.


Similarly, defense attorneys in Arkansas asked a judge to overturn a $12 million dollar jury verdict after it was discovered that one of the jurors tweeted, "I just gave away TWELVE MILLION DOLLARS of somebody else's money."


Meanwhile, in Pennsylvania, defense attorneys in a federal corruption trial are arguing on appeal that the trial judge should have declared a mistrial. Why? During the trial, one of the jurors covered the proceeding on Facebook.


This could give a whole new meaning to the phrase "face a jury."


Jurors aren’t the only folks tweeting or blogging from the courthouse. A recent ABA legal technology survey found that over 60 percent of America’s trial lawyers use PDAs, BlackBerrys, or smartphones in the courtroom during the course of a trial.


And if you can break away from your BlackBerry for just a minute, look up at the bench. What is Judge Herman Munster doing while otherwise warning my cousin Vinny to wear a suit made of some type of cloth? That's right, he and judges all across the country are increasingly using their own wireless devices to manage their schedules, communicate with their clerks and staff, and maybe (as shocking as this might be), read about things that have nothing whatsoever to do with the ongoing trial.


And what about your client sitting behind you? Turn around and check him out. Believe it or not, he may be giving a play-by-play account of this trial worldwide on the Internet. In a recent trial in Suffolk Superior Court in Massachusetts, it was discovered that the defendant was blogging about his own medical malpractice trial during the course of the proceedings. Defense counsel had no idea his client was doing this. And here’s the really cool part. The plaintiff’s counsel did know, and she was reading the defendant’s posts throughout the trial. Not surprisingly, she asked the defendant about it during a wonderfully rich cross examination, which led to a pretty quick settlement of the case.


Well, there is, of course, a simple solution to all this courtroom tweeting. Jurors are simply going to be required to turn in their iPhones and BlackBerrys before they step into the jury box or retire to the jury room to tweet, er, I mean deliberate.


I just hope the judges don’t take the next logical step and try to take the BlackBerrys and iPhones away from us trial lawyers. I do not tweet in the courtroom, nor do I wish to be twittered about when I am in the midst of cross-examining a real live witness and trying to get him to sing like a canary. But I confess I don’t know how I would make it through a jury trial without quietly using my BlackBerry to check out such important websites, such as ESPN.com.


Excuse me, Your Honor? What's that? Um, er . . . um . . . uh . . . No questions for this witness, Your Honor.


(Excuse me, folks, but I've got to go. This is the last time I am going to draft a column on my BlackBerry during the middle of a trial.)


Keywords: Trial practice, juries, Twitter, Facebook, social networking, smartphones


Bill Haltom is a Memphis trial lawyer with Thomason, Hendrix, Harvey, Johnson & Mitchell, PLLC.


This article appears in the Winter 2010 issue of Verdict, from the Trial Practice Committee.


 

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