Litigators are vetting jurors on the Net

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Beware of jurors who speak softly but carry a flashy laptop. They may seem staid but may have a vibrant online life that could make a big difference to your case — that is, if you discover it before they’re seated on your jury panel.

“My sense is that lawyers are increasingly paying attention to jurors’ lives online, but still have a long way to go,” says Anne Reed, a partner at Reinhart Boerner Van Deuren S.C. in Milwaukee and the author of the blog-based treatise “A Trial Lawyer’s Guide To Social Networking Sites”. “Lawyers often aren’t what people call early adapters — the first users of new technologies — so your average trial lawyer wakes up every morning and lives a full day without ever having seen a social networking site. When that’s your day, it’s hard to remember that many jurors have spent a significant amount of time on sites like MySpace, Facebook, and Twitter.”

Reed is referring to social networking sites that allow just about anybody to create a personal page or chat about just about anything they want. The most populated sites are Facebook and MySpace, but you can also find information on many jurors by searching Friendster, Bebo, YouTube, and Current. All are sites that allow users to post information, music, photos, or videos.

Remembering that many jurors share their lives on these sites has become critical to the job of voir dire. “It’s amazing what people write online,” says Paul Scoptur, a partner at Aiken & Scoptur S.C. in Milwaukee. In one case, Scoptur’s online research uncovered disturbing writings by a prospective juror.

“He had some writings about neo-Nazi type stuff,” says Scoptur. “We didn’t want that coming out during voir dire. We didn’t think it was appropriate primarily because we thought it might have made other jurors uncomfortable, and we had an African-American plaintiff.”

Scoptur informed the judge, who spoke with the potential juror in chambers and excused him.

“The judge felt the answers he was getting in chambers were sufficient to exclude the potential juror because his position was so extreme,” says Scoptur.

Nate Cade, a partner at Michael Best & Friedrich LLP in Milwaukee, had a more innocuous encounter with a blogging juror. When a jury questionnaire indicated that a potential juror had a blog, all the attorneys — and the judge — called it up during voir dire.

“The court had WiFi access in the jury room, and the potential juror was typing away during jury selection,” says Cade. “He said he hoped he didn’t get chosen and made a wisecrack about how we treat jurors.”

The blogger’s hopes were dashed when he was seated as a juror, but only after the judge extracted a promise not to blog during the trial.

Whatever the outcome of your online research of potential jurors, it’s important simply to do it. “There’s a lot of the jury selection process that makes people uncomfortable,” says Reed, “and they’re often expressing themselves much more fully in their blog.”

To find out about potential jurors’ online lives, Reed asks a simple question and offers a simple explanation: “I ask jurors, ‘Is there anything you’ve written that I could find online? I don’t want to get into your personal life, so if your page is password protected, I don’t need to go there. Whether it’s a blog or you regularly comment on news stories, I’d love to see that,’” she explains. “That works well in a questionnaire, and you can also ask people orally.”

The trouble, however, is that in Milwaukee County, it’s rare that attorneys get jurors’ questionnaires before trial. It’s much easier throughout the rest of the state. “There’s a lot of information out there,” says Cade. “It’s just a question of how much time a lawyer has to pick a jury. If I get a night to make a decision, I can have a lot more information.

If I get five minutes, it makes it harder.”

Remember, though, that while you’re researching potential jurors, they’re probably doing the same to you. “There’s an unexplained increase in traffic on my Web site the first night of a trial, and it’s no doubt prospective and picked jurors who Google me and my firm,” says Scoptur. “They’re not supposed to, but they’re human.”

That’s affected what some lawyers include on their Web sites. “Web sites aren’t for bragging about how much money we get for people. They need to tell what we do for people and all the good things we do for charity,” says Scoptur. “I know lawyers who’ve added content to their Web site to show the good things we do for the community.”