Forty-five percent of employers report they use social networking sites to screen applicants for employment as of August 2009 and even more plan to do so in the near future. And it’s pretty common knowledge that lawyers are using on-line profiles to gather information regarding prospective jurors. But now the tables are turning in an odd way. Attorneys: take note! The judge may want to be your “friend”.

A recent article in the Texas Lawyer tells about three Texas judges and how they use Facebook and other social networking sites to network, solicit campaign support, and “other purposes”. It’s that last part that’s the real clincher. These judges are reading profiles of attorneys, witnesses, and plaintiffs/defendants that share “too much” and could be used in court against them.

We are all figuring out how to use Facebook, Twitter, and LinkedIn as we go about our daily activities. While it is likely never a good idea to call the judge an “evil, unfair witch” in your blog, keep in mind the following as you develop and refine your on-line persona:

• If you are using social networking sites for business purposes, have two sites—one personal and one professional.
• Assume that even your personal site becomes publicly distributed—keep  your profiles and content “G-rated”.
• Keep all of your posts suitable for universal consumption– watch what you post, tweet, blog, or text.
• And don’t make my own mistake—double check the “To:” line on emails just before you hit send, not moments afterward.

Sure—it will make you less witty on the web, but it won’t come back to bite you.  The line between the personal and the professional is blurred as never before. We don’t have control over how others may use easily collectible information about us. As you think about the growing field of e-discovery—consider what you are putting out there about yourself. It is likely not just Texas judges that are watching.

Thursday, 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 17^th, 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.

Twittering jurors have been hitting the headlines lately. Mistrials and questions of justice interrupted have been on the minds of many commentators. This morning’s New York Times has an extensive article (featuring quotes from an interview with Dr. Doug Keene) on this issue and we predict there will be more to come as our justice system attempts to sort out the dilemma of our ties to the internet and the demands of justice.

There are few methods in place to keep jurors from accessing the internet from their telephones in the deliberation room. Few judges give specific instructions to jurors about refraining from doing their own internet research on the case. Jurors may end up thinking they are helping to make a just decision by doing research on their own—without understanding the complex rules that allow evidence in or keep evidence out.

How the judicial system will reconcile long-time rules and expectations with current technology and ease of access to information remains to be seen. Given the recent publicity, however, we expect to see much more emphasis on how to keep our system fair by educating jurors on the importance of basing decisions on evidence presented in the courtroom.

Update: July 25, 2009: And by the way, you can now follow us on Twitter by clicking here (but we won’t tweet from the courtroom): http://www.twitter.com/KeeneTrial.