After an Arkansas jury reached a $12.6 million verdict in February against Russell Wright and his company, Stoam Holdings, one of Wright's friends ran a Google search on the company. He found a shocking result.
Juror Johnathan Powell had apparently posted several entries on his Twitter page during the trial. One post read, "Nobody buy Stoam. It's bad mojo, and they'll probably cease to exist, now that their wallet is $12M lighter."
Wright appealed the verdict, and the judge ruled Powell's conduct was in bad taste but didn't warrant a new trial. Powell, who "tweeted" from his cell phone throughout the day, claimed he only did so during breaks. He also said the time stamps on the posts were from a different time zone, meaning he had posted the most revealing information two hours later than it seemed--after the trial had ended.
"We have proof that he was sending information out," says Brady & Platt attorney Drew Ledbetter, who represented Wright in the appeal. "But any time a juror is communicating with the outside world, there's the possibility that communication could be two-way."
A recent rash of other, similar cases ending in mistrials have experts worried that the increasing ubiquity of Web-enabled mobile devices makes it too easy for jurors to independently research their cases.
In-house counsel must take steps in every trial to prevent the Internet from derailing their cases. There are several strategies, but most importantly, GCs need to always be proactive and conscious of technology's long reach.
Outside Information 2.0
Limiting juror access to outside information has preoccupied legal professionals since the beginning of the American legal system. Before computers or newspapers, jurors could go home and discuss cases with their spouses.
Now, judges order jurors to avoid newspapers, television and Internet. But the availability of the Web in the palm of a juror's hand adds a more immediate dimension to the problem.
"It's that much harder, because you don't need a whole lot in order to access an unbelievable wealth of information," says DLA Piper Partner Jeffrey Rosenfeld. "You've got jurors who could literally be sitting in the box running an Internet search while testimony is going on."
There's the obvious risk of finding inadmissible evidence or the half-truths that flood sites such as Wikipedia. And once one juror does research, he can share his findings with other jury members. When that happens, the entire jury could be tainted, possibly causing a mistrial.
Additionally, iPhones and BlackBerrys are distractions, stealing jurors' attention from the issues at hand. "The last thing you need in a lawsuit is three jurors instant messaging their best friends, telling them what's happening on the stand because the guy's hair is sticking up," says Buchalter Nemer Shareholder Richard Ormond.
Whatever the specifics, discovering juror misconduct after the trial has ended--like in the Stoam case--is unusual. When jurors get caught breaking the rules with electronics, it's usually because somebody sees them doing it. During a trial Ormond litigated two years ago, the bailiff saw a juror text messaging during opening statements. The trial stopped, and the judge admonished the jury about using phones.
In other cases, jurors end up informally monitoring each other. If one sees something inappropriate, he might notify the judge or bailiff.
Unfortunately, there is no universal electronics policy between courthouses, or even judges in the same building.
Kathy Ossian, the information technology team leader at Miller Canfield, says in Detroit, where she works, the federal courthouse does not allow any phones or laptops into the building. But in Los Angeles courts, where Rosenfeld works, it depends on the judge. He says that some jury rooms have wireless connections, so prospective jurors can work on laptops while waiting to see if they're chosen.
This fragmented system means responsibility lies squarely on counsel--both in-house and outside working as a team--to make sure the issue receives proper attention.
First and foremost, lawyers must ask judges to give detailed instructions to the jury before trial starts, prohibiting all device usage. Experts recommend the judge repeat these instructions several times throughout the course of the trial if it stretches over several days.
"I'm talking really specific," Rosenfeld says. "No BlackBerry. No Google. No Twitter. Nothing."
To be more proactive, he recommends asking prospective jurors about their electronics usage during voir dire. Attorneys can find out if a juror would likely break the rules. More importantly, however, counsel should find out if someone has done research while waiting to be chosen.
"In between the time a potential juror sits in the courtroom and sits in the box," Rosenfeld says, "he can research everyone in the courtroom, including the lawyers."
In a recent example, the South Dakota Supreme Court heard a case against a seatbelt maker. The decision in that case had been overturned because a juror looked up information on the defendant while waiting for the trial to begin. At press time, the Supreme Court had not issued a ruling.
Still, there's only so much counsel can do short of sequestering a jury, which rarely happens. "If they're willing to lie in court, there's not a lot you can do about it," Ossian says. "[But] people tend to be fairly honest if you've got the judge asking them a question."
Changing the Rules
The legal world is gradually waking up to the reality of handheld Internet, but not everyone has jumped on board. In-house counsel should be in the courtroom during litigation, making sure all judges and outside lawyers are paying attention, according to Ormond.
"Inside counsel have to make sure their outside counsel (and the judge) are aware of the problem," he says.
Eventually, experts suspect bar associations will adopt updated rules of procedure to jive with this new issue. Ormond points to the recently changed Federal Rules of Civil Procedure, which now include e-discovery guidelines, as an example of the system's adaptability.
"In-house lawyers should subscribe to that," Ormond says. "There are different organizations that lobby the state legislature or whoever dictates the code of civil procedure. [Counsel] should make sure those groups are aware of the problem and take the necessary steps to fix it."
But there is debate over how extensive change should be. There's an argument for banning devices from all courtrooms, as in Detroit. But some say merely ensuring that judges warn every jury not to use electronics may be just as useful.
"If you take somebody's BlackBerry away for a day, they almost become suicidal," Rosenfeld says. "I don't think we need to go there yet. If somebody really wants to cheat, they're going to cheat. They'll go home at night
and do it."