My sleepy Monday started with full-on Twitter commentary emanating from a courtroom in Brooklyn. It seems that Ryan J. Davis (@RyanNewYork), a Brooklyn social media-active guy had gotten pulled into court for jury duty.
Mr. Davis was live-tweeting voir dire–AKA jury selection–from the court room. That’s to say, he was broadcasting his observations on Twitter while sitting on a case. He explained:
“Nobody had told me not to tweet, everyone can see me clearly on my phone.”
Some of his tweets were amusing and harmless, but at least a few crossed the line, including one regarding the merits:
“Apparently the woman suing the nursing home has been in like 6 accidents and is always suing. Raises some flags.”
And then there was this somewhat ominous appraisal of one party’s attorney:
“Plaintiff’s attorney said “you won’t see me on any late night tv ads'” I don’t believe him.”
Ryan, being a skilled social media user, quickly saw that a small group of trial lawyers were talking about what he was doing. He was eventually told by the judge that he should not be posting on Twitter, and he wondered whether one of us had complained to the judge.
Through the limited space of Twitter posts, I explained that I had not and promised to elaborate on the complicated problems of jurors and social media.
So now we’re caught up, and Ryan this is for you.
Our civil justice system stands and falls on the jury and the integrity of the process. The injured woman sought access to justice because she believed that the nursing home should be held accountable for maintaining its facility in a way that was safe for those entering the business. Whether she is right or wrong, injured or not, it is up to the jury selected to hear the evidence and render a verdict. My worry is that Twitter and social media disrupt that process.
You engaged in the very human process of forming impressions on things that mattered (the woman’s credibility based upon someone’s claim that she had made prior claims) the credibility of her counsel (based upon his appearance and conduct). You did that without the benefit of actual evidence.
I imagine that happens to many potential jurors, so you’re still in an unremarkable position. But then those are broadcast to tens of thousands of people who follow you and beyond. Until earlier today, I did not follow you; I only picked up on the stream because someone flagged it for me.
So we’ve taken the initial impressions that aren’t based on evidence and broadcast them outward from the courtroom. I imagine some of your 30,000+ followers responded, retweeted, etc. and next thing you know the merits of a case in Brooklyn are grist for the social media mill.
Now if it seems like I’m picking on Ryan, that’s not my intention. Assuming Ryan accurately heard all and correctly tweeted the lack of instructions regarding use of Twitter, the problem is upstream with the court and counsel. But it is a problem.
It goes back to the foundation of the civil justice system–the jury. The parties need to know that their case will be tried on evidence in the courtroom. Put another way, if I am trying that case, I know how to put on a case, challenge through cross-examination witnesses who are adverse, and analyze and argue the evidence. But I can’t argue with information and influence that enters the jury room through Twitter and other social media.
Some in the social media world may say, “Tough luck, pal. This is the new world; get used to it.” To which I say, “Not without a fight.” Because the civil justice system is what levels the playing field between oligarchs, corporations and consumers. Do you have any doubt about a large, institutional corporate nursing home’s chain ability to influence via social media jurors who are willing to listen during trial? Do we doubt for a moment the power of protected corporate interests to exploit these channels?
So at the risk of sounding pompous (or worse), we need to figure out how to divorce social media from the jury box. To do otherwise is a loss for consumers who count on the integrity of the civil justice system as a uniquely American means of leveling the playing field between the oligarchs and the rest of us.
Ryan, if you catch this, thanks for the teachable moment. Hope that I’ve explained my concerns and the stakes adequately. Happy to discuss in detail if this is of further interest.