The Power & Danger of Researching Social Networking Sites for Voir Dire

I have written about the legal issues surrounding social networking sites (click here and here to read those posts).  I even did an ALI-ABA teleseminar with Eric Goldman yesterday discussing, among other things, how the Communications Decency Act protects social networking sites against suit based on third party content published on the sites.  But Julie Kay's National Law Journal article yesterday -- click here to read it -- provided a new angle on the power of social networking sites in the courtroom. 

It is no surprise that lawyers, either alone or assisted by jury consultants, research juror backgrounds, and use their research during voir dire and to inform their trial presentations, in particular opening and closing arguments.  Of course, internet research has been a cornerstone of those efforts for years.  But social networking sites have vastly increased the amount of information available about the average person.  Instead of learning someone's Turkey Trot 5k time and one or two newspaper quotes, you now may be able to see their entire resume on LinkedIn, read about major life events on FaceBook, or even read their personal, daily thoughts on a blog.  Kay reports that the information is a valuable fact checking tool, acting as a backstop to information provided in a jury questionnaire.

Additionally, blogs can tell you a lot about a juror, that the juror might not be inclined to disclose in open court or on a questionnaire. To illustrate this point, Kay quotes Anne Reed of Reinhart Boerner Van Deuren -- who writes Deliberations, one of my favorite legal blogs. Reed tells the story of "Erin" a relatively prominent Florida blogger who blogged that she was a juror several days after posting that: "I totally understand how innocent people that go to prison turn into hardened criminals . . . ." Reed explains that the lawyers might not have struck Erin for her blogging, but that it was critical information to have in the decisionmaking process:

"You'd hate to leave Erin on your jury without having seen her writing," said Reed. "A juror's blog tells you things about the jurors that she probably won't tell you herself."

Kay also quotes Holland & Knight litigator Dan Small who raises an important and often overlooked note of caution. Small is concerned that invading jurors' privacy via internet research could make jurors very uncomfortable and is a substantial invasion for people performing their civic duty:

"You are taking people who are doing their civic duty and didn't sign up to have their whole life probed," Small said. "It scares people. They wonder: 'Are they going to hack into our e-mails next?' The Internet in so many areas creates an extraordinary conflict between the desire for information and the desire for privacy."

Of course, there is a real question as to whether anything posted on the internet, without password protection or some other privacy protections, can be considered private in anyway. But there is little doubt that knowing their backgrounds were researched and their FaceBook pages were read could make jurors uncomfortable and learning that their backgrounds have been probed could turn jurors against the lawyers or their clients. So, at a minimum, the information needs to be used carefully and discreetly.

Lawyers Do Not Understand Juries

Anne Reed has an excellent post at Deliberations identifying the numerous ways that litigators misunderstand jurors.  Her post is based upon an article titled To Deal Better With Juries, Stop Thinking Like a Lawyer!, by Patricia Steele of Varinsky Associates -- click here for Reed's post and for a link to a pdf of Steele's article.  Steele provides numerous examples of the way the common legal wisdom about juriors directly opposes jurors' realities.  For example:

  • It is not the lawyer or her closing that makes the case, but the facts.
  • Clever legal arguments lose cases, themes of justice, and rights or wrongs win cases.
  • Voir dire should be used to get to know the jurors, not to teach the case.

Steele's observations square perfectly with my observations as the son of a trial attorney, a former federal district court law clerk and a practicing lawyer.  Each of the misconceptions Steele identifies comes from one of two basic and common misunderstandings:

  1. Trials are stages for lawyers.  Wrong.  Trials are a stage for the facts and the themes lawyers wrap the facts in.  Good facts generally beat good lawyering.
  2. Lawyers understand jurors.  Almost always wrong.  As most lawyers know, law school is intellectually transformative.  After three years of law school (plus years of practice) a lawyer thinks differently.  One of the critical tools for a trial attorney is access to non-legal thinking.  One way to get it is to learn to strip away the legal framework we have built up and think like a juror.  This is hard to do, especially as you are in the whirlwind of a trial or trial preparation.  The best lawyers recognize this issue and turn to juror proxies -- their assistants, spouses, children, neighbors, friends, baristas or anyone else they know without legal training -- to get non-legal perspectives.  Of course, consultants, focus groups and mock juries can also provide juror thinking.

Everyone who tries cases, or who aspires to, should go to Reed's post and download Steele's article to read and re-read.

May Carnival of Trust

Welcome to the May 2008 Carnival of Trust.  For regular Blog readers, this will be a slight departure from the case analysis format you have come to expect.  But I promise you the trust-related links will still be valuable reading for IP litigators and IP litigants.  And in the spirit of the Carnival, I will now proceed to build your trust in me by following through on that promise.

The Carnival of Trust is a monthly, traveling review of ten of the last month's best posts related to various aspects of trust in the business world.  It is much like the weekly Blawg Reviews that I post links to and have hosted, but those generally contain far more than ten links.  My job this month was to pick those ten posts for you and provide an introduction to each post that makes you want to click through and read more. 

Do you trust me?  Jeremiah Owyang at Web Strategy by Jeremiah says you do not , unless you are related to me.  But the real point of Owyang's post and the studies he cites is that people do not trust an unspecified blogger as much as their family or other unspecified news sources.  That is not surprising and even shows good judgment.  As Anne Reed at the Deliberations blog points out, choosing blogs is about developing trust.  You find a few that you like and trust, trust developed by entering that blogger's conversation and developing confidence in that person's posts, and based on your trust in those blogs, you begin to find other quality blogs:

I learned the territory one or two blogs at a time, first coming to like and trust a few blogs (and bloggers) and then following their links and blogrolls to others. 

Both the upside and downside of blogs is that you cannot develop an audience, or a community, by simply building an attractive, user-friendly site with good search engine optimization (although if you are going to run a law blog, you should do all of those things.  People may come once for flash, but return visitors and respect within the blogging community is generated with strong, consistent content.

[UPDATE]:  After this entry was posted, there was some more law blog discussion of Owyang's post and the studies he cites.  In order to preserve the ten post limit, I have posted a May Carnival of Trust Addendum.  Check it out by clicking here for more posts related to whether bloggers are trusted.

Kevin O'Keefe of LexBlog pairs up with his able VP of Client Development Kevin McKeown to advise bloggers and their employers, specifically law bloggers but the post applies more broadly, on how they can build trust with each other by devising a thoughtful corporate blogging policy and by meeting legal ethics standards -- click here for the post.

In professional services circles, American Airlines' serial MD-80 groundings was big news.  Mark Bonkiewicz at World Class Trust argues that American Airlines, and airlines generally, have destroyed much of the public trust they built over decades of excellent service.  And he contends that they have a long road ahead to regain the trust.  But as a frequent flier who spent a lot of time during and around the MD-80 groundings on American Airlines flights, I disagree.  In my experience, American largely handled cancelled flights and frustrated passengers well.  This suggests that trust is subjective, a premise that squares with my personal experience.

Alex Meierhoefer at Leadership and Talent Development for Smart People asks:  Is Trust a matter of Perspective?  He looks at the "trust equation" and contends that trust should not be subjective, or at least is not subjective if parties in business deals, and presumably in politics as well, communicate openly.  The problem with that is assuming open communication assumes trust.  Additionally, sometimes unseen factors enter in to the other party's decision making causing them to take actions that harm trust because of a lack of information.  Perfect information and decent actors would guarantee trust, but absent perfect information trust will always be at least partially subjective.

 My engineering background does not let me walk away from an equation without some discussion.  And the Carnival of Truth's own Charlie Green provides an excellent post at his Trust Matters blog discussing a version of the trust equation and providing a self-diagnosis tool which outputs a trust quotient (like an IQ score) on a fifteen point scale.   Here is the equation the diagnostic is based upon:

 TQ=C+R+I/S

 

 


Where C is credibility, R is reliability, I is intimacy and S is Self-Orientation.  The diagnostic is interesting and the results may surprise you, they did me.  Any tool that helps you take an honest look at yourself is a powerful resource for leaders and managers.  The more honestly we can look at ourselves, the better we can care for and lead our teams.

Instead of using an equation, George Ambler at The Practice of Leadership asks What is Your Trust Rating? by looking at Robert Hurley's ten primary trust factors.  I like the equation, but the factors get to the same result.  And as leaders, it is critical to evaluate how others perceive our trustworthiness.  So, use the equation or the factors, but take the time to do it either way.

On the subject of trust-based leadership, Victoria Pynchon at the Settle It Now, Negotiation Blog has an excellent guide for maintaining your client's trust during a difficult negotiation:  How Can I Convince My Client to Lose More than Predicted and Still Maintain My Own Credibility?  The answer is complex and multi-faceted, but it boils down to the fact that you have to get the stakeholders and decision makers face-to-face, get their buy in on resolution as a goal (in addition to winning), explore all avenues of resolution, and you have to let them explore all aspects of the dispute, even those that do not matter.  The last point is a difficult one for lawyers.  As a lawyer you generally want to remain focused on the settlement inputs -- money, confidentiality provisions, sale of existing product if something about the product is being changed, etc. -- but from a trust perspective it is important that the stakeholders resolve not just those issues that go into a final agreement, but any problems or concerns they have related to the dispute or the parties to the dispute.

And on a related topic, the Patent Baristas have a great post explaining how biotech companies can get past typical stereotypes, and sometimes realities, of doing deals with university tech transfer offices by, among other things, recognizing the other side's by treating the other side with respect, and appreciating both their needs and their constraints -- in other words, developing their trust.

Ed Moed at Measuring Up looks at the importance and power of building a trusted brand for sales:  Build a trusted brand and the possibilities are endless…  He was drawn in to a new diner in his local Whole Foods simply by the power the Whole Foods brand holds for him.  As someone who grocery shops and then eats breakfast with his son at Whole Foods most Saturday mornings, I can appreciate Moed's point.  If my local Whole Foods opened a restaurant or a diner (we currently make breakfast out of items purchased from the store and eat in a small seating area at the front of the store), I would eat there at my first opportunity.  Is your brand strong enough to draw people in that way?

Blawg Review of the Year Nominations and Blawg Review #141

I enjoyed my first opportunity to host Blawg Review (a weekly review of the best of the legal blog world hosted by a different blog each week) -- click here for my injunction-themed review.  Having hosted a 2007 review gives me the opportunity to nominate my favorite reviews for the Blawg Review of the year award.  Here they are, in chronological order:

  • #134 NY Personal Injury Law -- I am a sucker for running and this was an excellent post on top of that.
  • #127 Deliberations -- One of my favorite blogs.  A must read for anyone that deals with juries, or wants to.
  • #126 Small Business Trends -- One of the few reviews not hosted by a law blog, which is a nice change of pace.
  • #106 Blawg IT -- I love running, but motorcycles are too fast for me.  That said, this was an excellent review.
  • #95 AutoMuse -- Perhaps it was the years I spent in-house with the auto industry, but I enjoyed the automotive theme.

Finally, this week's Blawg Review #141 is available across the pond at Charon QC.

Blawg Review #133

Last week the intellectual property world obsessed over injunctions – specifically, a preliminary injunction hearing in the Eastern District of Virginia resulting in an injunction against the U.S. Patent & Trademark Office’s (“PTO”) new continuation rules. There was a lot of analysis about the injunction, including live blogging by Patent Practice Center Patent Blog and a lot of post-injunction analysis by, among others: 271 Patent Blog; FileWrapper; Patent Baristas; Patent Docs (and here); Patent Prospector; PHOSITA; Patently-O; WSJ Law Blog; and Washington State Patent Law Blog. For those of you who have no idea what a continuation is or just do not care about the particulars of the rules, I promise that I am done with patent continuations for this post. Honestly, I find the rules rather tedious myself. I prefer to focus on litigating patents, rather than the PTO’s prosecution rules. So, today we talk about injunctions:

According to TechCrunch, Patent Monkey received a permanent injunction when it was sold to the Internet Real Estate Group. But Patent Monkey’s patent search technology will see its injunction lifted when it is used on www.patents.com. Hopefully, for those like me who enjoyed it, Patent Monkey’s Infinite Monkey Theorem Blog will also see its injunction lifted.

Virtually Blind has an interesting report on Second Life’s* new Patent & Trademark Office, the SLPTO. No word on whether the SLPTO and the Second Life legal system generally will allow for any permanent injunctions. Right now it appears that the SLPTO will be heavily skewed toward copyright and trademark, which makes sense in a virtual world. And before we learn whether the SLPTO has any enforcement mechanisms, Blawg IT is offering to represent virtual clients before the SLPTO. I would get a retainer up front Brett – virtual clients can be difficult to track down when the bills are due.

The Patry Copyright Blog shows why Second Life injunctions may be necessary. Six Second Life players have sued a Queens man in the Eastern District of New York for trademark and copyright infringement based upon sales of goods in Second Life. I wonder if the trademarks and copyrights were registered with the SLPTO or the US PTO/Copyright Office. And does the E.D.N.Y. have authority to issue cyber-injunctions?

Promote the Progress provides an interesting piece on the long-term effects of last week’s injunction against the PTO on shaping patent reform.

SportsBiz explains that plaintiffs who were bilked out of millions in attorneys’ fees by their now-jailed lawyers were not irreparably harmed. A Kentucky court awarded them a 20% ownership interest in Curlin, the prize race horse and Breeder’s Cup Classic winner partially owned by the jailed lawyers.

Adams Drafting issues its own injunction against using virgules. Using what? The virgule, or the forward slash. He explains that it is frequently used to mean: 1) “per” – 50 miles/hour; 2) “or” – and/or; and 3) “and” – all parents/subsidiaries/affiliates are bound by the obligations. The problem is that the various uses create ambiguity. Adams acknowledges that he cannot find any litigation specifically about the virgule. But the best solution is to remove the virgule from your writing before you become embroiled in the first litigation over one. And when it comes to rules of writing and grammar, the best solution is to listen to Adams.

What if you do not want an injunction or just want a faster, cheaper resolution? The IP ADR blog is talking about last week’s big settlement between Vonage and Verizon. They suggest that you consider using contingent agreements to control for changing future conditions and charitable contributions. They also point out that creativity and out-of-the-box thinking are important elements for reaching settlements.

Another way to avoid an injunction is to understand how best to argue against the opposing party and their counsel. The Center for Internet & Society discusses how men and women in the United States and in other cultures communicate and suggests that understanding the nuances of how different people communicate around the globe could advance legal discourse.

Lowering the Bar reports on a Michigan man sentenced to sixty days in jail for a home invasion that ended in him throwing two large pickles at residents of the home. No word on whether he will be enjoined from pickle ownership. Okay, that is a weak tie-in, but who can resist a pickle invasion story.

Deliberations discusses one of the basic truths of trial law – you must connect with your jury about basic truths of your case. That is equally true when seeking an injunction – if the judge senses something is not right about your argument, you will not get your injunction.

The writers’ strike that is expected this week is not an injunction, but it will mean an end to new scripted television and movies. Concurring Opinions has an interesting post about a brewing legal dispute between the studios and the writers’ union, the Writers Guild of America (“WGA”). The WGA is requiring that members provide information on all unproduced projects and an update on the status of those projects, as per the labor agreement between the WGA and the studios. But the studios, based upon their individual agreements with writers, are warning writers that the studios  own the scripts and the writers are barred by contract from giving the WGA any information about the projects. These conflicting contracts place the writers in quite a pickle (I could not resist), and it poses an interesting legal question as to which contract controls.

And I end with a post that is actually about an injunction. The Maryland IP Law Blog (another LexBlog creation) posted about a District of Delaware court that upheld a jury verdict of patent infringement and plans to enter a permanent injunction against Lonza, Ltd., Nutrinova Inc. and Nutrinova Nutrition Specialties & Food Ingredients GmbH prohibiting the U.S. sale and use of a fatty acid product currently marketed under the brand name Lonza DHA for use in functional foods and dietary supplements.

Thanks for reading. And for the Blog’s regular readers, I will be back to my usual Northern District of Illinois focus tomorrow.

* Second Life is an internet-based virtual world where “residents” interact through avatars. For example, the Seventh Circuit’s Judge Posner appeared in Second Life with an avatar closely resembling him to answer questions from, among others, a DC IP lawyer using an avatar of a humanized raccoon. Check out the New World Notes blog for a transcript and some screenshots.