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Let’s see if you can text him from jail…

Tuesday, August 18, 2009
posted by Douglas Keene

jail cellAt last week’s hearing in Miami, the plaintiff in a commercial case won a victory of a very strange sort—when the judge dismissed his case he didn’t simultaneously throw the plaintiff in jail.  But the judge referred the case to a General Magistrate, so stay tuned for further developments.

Miami Dade Circuit Judge Scott Silverman declared a mistrial in a commercial fraud case in May when the Plaintiff, Yizhak Toledano was seen by a court spectator sending text messages to the witness, COO Gavin Sussman, during a sidebar conference while the witness was still on the stand.  Now the fraud suit has been dismissed by the judge, who wrote a scathing rebuke to Plaintiff for his conduct, and sanctioned Plaintiff for Defense fees and costs.

What makes the whole situation the stuff of magistrate referrals and jail terms? Improper witness communication can be inadvertent or careless, but not so in this case—it appears to be the way they get things done.  The witness in this case had already been reprimanded by the court two months earlier for texting another witness in the case during a deposition.  These seem to be people that don’t play by the rules or take oaths of testimony seriously.

According to published reports, the judge essentially said that the Plaintiff’s conduct destroyed whatever merit their case had, and “Nothing this judge has seen holds a candle to plaintiff’s egregious and deliberate attempts to subvert our justice system”.

Not that these witnesses would care, but my favorite book on witness preparation is Daniel Small’s “Preparing Witnesses”, now in the second edition, published by ABA Press.   A short volume, it is written for both attorneys and witnesses, and offers clear and sensible guidance that we have found useful for many years.  Of course, we would urge Mr. Small to add a new section for the next edition, perhaps entitled “Things that no one should have to tell you not to do”.  The new section will end with a short paragraph on “What happens if we have to tell you twice”.

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twitter-failThursday, August 6, 2009 was a day that apparently will live in infamy for many habitual Twitter and Facebook users. Multiple social networking sites were attacked and crashed, leaving users without a way to update their circles on their activities. Some “users” panicked as much as you might have expected from drug addicts. Users were “jittery”, “naked”, “freaked out”.

Those of us not drawn obsessively to Twitter, Facebook or other social networking sites, find these reactions seem frankly bizarre. It isn’t like my favorite Starbucks café shut their doors without warning me!  But, obviously, those affected by the Twitter/Facebook fail were strongly affected. As Marc Cooper, a journalism professor at the University of Southern California’s Annenberg School for Communication said in the CNN article:

“For many people, and not just young people, the Web is not just media, it’s actually a place where they conduct their lives or a portion of their lives.”

What we can learn from this reaction:

We need to remember where our jurors live their lives—some are not involved in on-line social networks and others are—to a very large degree.  Much like a recent post on the Cognitive Daily blog points out there are generational gaps that we often overlook.

Just as most younger jurors have no idea of the origin of the phrase “sour grapes”, many more ‘mature’ litigators don’t stop to think about how—or even if—on-line networking involvement affects how jurors hear their case.  For many, social networking is a friendship circle, and a source of information and impressions about everything—including case-relevant information.

Just as the barrage of media coverage on Twittering jurors hit in March (see our blog post on March 17th, 2009), the reaction to the failure of these on-line networks is a strong reminder  to pay attention to social networking involvement of our potential jurors. What values and attitudes are inherent in this merging of private and public lives? How might potential jurors have shared perspectives that give us information on how they will react to your case? We have to learn to pay attention to what is important to the public—not just what is important to us.

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