Some trial lawyers claim to be so good at their craft that they can read a juror’s mind. HOGWASH! Jurors are often unpredictable, arbitrary and can render verdicts based upon what they had for lunch that day (rent “Twelve Angry Men” if you don’t believe me). No matter what anyone tells you, there is NO LAWYER who can read the mind of a juror. You will have an easier time reading the facial expressions of a world-class poker player than you will a juror in a trial.

Do you want to read jurors’ minds?

So what do you do? Give up and just cross your fingers and hope for the best? Not so fast, my friend. The social media age of Twitter and Facebook gives trial lawyers access to the thoughts of millions (500 million on Facebook at last count) and it’s amazing what you can discover about a total stranger, or in our case, what you can discover about a juror in your trial.

There is no ethical prohibition against lawyers’ reading the social networking sites of prospective jurors during the jury selection (“voir dire”) phase of a trial as long as there is no direct contact with the juror. Lawyers may monitor a juror’s social network sites provided they don’t engage in deception to gain access to non-public web pages and don’t contact jurors through “friending”. While a lawyer cannot send a message to the prospective juror, there is no rule against lawyer monitoring of juror social media sites during jury selection or trial.

A lawyer may ethically view and access the Facebook and Twitter profiles of jurors as long as the lawyer does not “friend” the juror or direct someone else to do so. Under the New York Rules of Professional Conduct, lawyers may passively monitor the social media sites of jurors during trial and Google potential jurors during jury selection. If you aren’t taking advantage of the information available to you through Facebook and Twitter about jurors, you can bet your adversary is.

What can you learn about a juror on a social media site that you can’t discover through jury selection? You’re not serious, are you? Most prospective jurors are careful to give the politically correct answer during jury selection, i.e., “yes, I can be fair and impartial.” When was the last time a prospective juror told you that he was racist, hated foreigners and didn’t like the way your client looks? Never…well, at least almost never.

A treasure trove of information about a juror is available through the social media sites. You can learn information that the prospective juror would never tell you during jury selection, such as their views toward authority, religious and political opinions, and maybe that they hate lawyers and don’t want to waste a week of their life sitting through a trial. Now, we’re getting somewhere.

You don’t want to learn too much about a juror’s thoughts during trial

Be careful. If you are eavesdropping on a juror’s social media site and the juror posts their thoughts and deliberations about the trial, you have an ethical dilemma. Jurors have been known to post publicly their views on the strengths and weaknesses of a trial via Twitter and Facebook. Although a Judge warns jurors not to discuss the case with anyone, jurors routinely ignore the instructions.

The New York ethical rules require lawyers to report to the court any juror misconduct. If a juror posts their views of the case on a social media site and the lawyer becomes aware of the posts, the lawyer has an ethical obligation to notify the court of the juror’s improprieties.

Ethically, the lawyer cannot use the juror’s public posts about the trial for his client’s advantage. If a juror posts on his Twitter page that he hates the defense attorney and the jury agrees to render a verdict for $1 million for the plaintiff, you cannot use this “inside information” for the advantage of your client. You must report this juror misconduct to the Judge.

But don’t let that stop you using the social media sites during jury selection and trial. The goldmine of information on the social media sites is just waiting for you.

I welcome your phone call if you have any questions

If you want more information, or have questions, please consult an experienced attorney.