As more and more people establish a presence on social media websites, the line between the real world and the virtual world becomes increasingly blurred. That’s true in many aspects of life, and it is particularly relevant when applied to jurors. In a recent ruling handed down by the American Bar Association (ABA), lawyers may rightfully review the social media postings of jurors and potential jurors. However, strict lines for appropriate conduct and ex parte communication have also been drawn.
The ruling by the ABA essentially says that it is appropriate for lawyers to peruse the social media postings of jurors at websites like Facebook and Twitter. However, it remains unethical for lawyers to make friend requests to these jurors or to “follow” their social media posts. It is believed that doing so would breach rules against ex parte communication. Accordingly, lawyers may lawfully review those posts that a juror chooses to make public. Such items as may be accessible only by the people designated as “friends” by the juror may not be reviewed by the lawyer.
Lawyers may be interested in reviewing such publicly available information in order to ascertain whether or not jury instructions are being adhered to. These postings may also be of interest during the jury selection process when an attorney may be looking for bias or prejudice.
The ABA feels that judges and lawyers in the courtroom should discuss social media expectations. Thus, a judge may instruct that it is inappropriate for jurors to make any social media postings during the course of a trial. Lawyers may monitor whether or not this activity is occurring. Jurors should also be instructed that their social media presence may be of interest to the parties involved in a lawsuit, and that their postings may be reviewed by attorneys involved in the case. The ABA feels that there will be fewer misunderstandings if clear rules regarding social media behavior are established early in the proceedings.
Sylvester, Oppenheim & Linde represents businesses and their owners in most types of litigation. If your business has a legal problem, contact Richard Oppenheim directly for a prompt, no charge initial consultation. You may use the contact form in the left column or call 818-461-8500.