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How to Save Your Case from an iPhone Mistrial

The full story on the risks of Web access in court.

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Putting a 21st century spin on an age-old problem, jurors obtaining information from BlackBerrys and other electronic devices while in court can jeopardize a defendant's right to a fair trial.

In addition to the strategies for minimizing that risk outlined in the June InsideCounsel story "Mobile Misdeeds", Kathy Ossian, principal and leader of the information team at Miller Canfield, has a few more tips for dealing with tech savvy jurors:

"Get the jury polled on this issue [of obtaining information about the case through an electronic device], at the point of the verdict. It would be another way to keep it in line, but if they're willing to lie in court, there's not a lot you can do about it. You [could] see polling like this: 'Is this your verdict?' 'Yes, this is my verdict. 'Your verdict was based on review of this evidence and only the evidence presented in the trial?' [That would help] verify the jury didn't use any outside sources or research.

"I had seen back in the fall that there were indications of lawyers using things like Facebook pages and other information that might be out there when screening potential jurors. Back then, it was to find out 'Can I see if this person is politically conservative? How do they feel about this issue? Do they dislike insurance companies?'

"But that may also be a useful tool [for the devices issue]. If someone has a significant presence out there in various social media forums, maybe you don't want that person on the jury."

But electronic devices in court aren't a jury-only issue. They affect attorneys just as much, both positively and negatively. Attorneys sometimes e-mail clients or witnesses during trial to get extra information they don't have in court, but electronics can also become a major distraction. Buchalter Nemer Shareholder Richard Ormond weighs in on lawyers using the Web in court:

"Technology is going to change the way we do a lot of things. The restriction of my use of technology during a trial always bothers me, because when I am dealing with multiple people at my client's office, including inside counsel, I want to have the ability to run facts by them as they come to light in trial. If there's an overall ban on electronic devices--which includes attorneys--I think sometimes that's detrimental.

"I was in a situation in trial where I needed to get some information right away, and I knew someone in my office had that information at their fingertips, and I was precluded from even pulling out my laptop. We asked for recess and didn't get it, so we had to wait until lunch break for information that would have been useful two hours earlier.

"At the same time, you don't want your attorney distracted because he's sending e-mails back and forth. So there's kind of a fine line there."

Contributing Author

Christopher Danzig

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