Using Internet Research to Get to Know Your Prospective Jurors by Miles Hutton
W
ith the rise of social media, there is now a great deal of public information existing on the internet about many individuals. As part of jury selection, this information can be gathered and analyzed to provide attorneys with a much fuller, richer picture of a prospective juror than would be attainable through voir dire alone. This article guides you through how professional jury consultants, such as those at DecisionQuest, can aid the process.
CAN’T HURT TO ASK The best way to maximize a thorough background internet search on each prospective juror is by getting the jury pool list several days in advance. Therefore, it is important to ask the judge or the court clerk if he or she will be willing to provide this list to you early.
GO BEYOND SOCIAL MEDIA Social media sites such as Facebook, Twitter, LinkedIn, Instagram, and YouTube, along with a cursory Google search, can provide valuable information on prospective jurors. However, it’s important to go further to uncover more potentially useful information that exists on the web about a particular individual. Searches can be conducted on public websites that give information about a person’s family members, political party registration and campaign contributions. Public websites can also be used to obtain pictures of the person’s home and valuation of his or her property. Many trial consultants then supplement the information found publicly on the internet through an online subscription database that gives information about bankruptcies, liens, civil cases in general, criminal history, professional licenses, and incorporation filings.
AVOID INADVERTENT COMMUNICATION The ethical rules governing attorneys’ conduct prohibit ex parte communications with prospective jurors and members of a sitting jury. Bar associations around the country have expressed different opinions as to whether the generation of an automated message to the prospective juror because of an attorney or jury consultant searching him or her constitutes an ex parte communication. Regardless of the rules in a particular jurisdiction, it is better to avoid the ethical quandary of a consultant inadvertently sending a prospective juror such a message. To avoid this possibility, research should be conducted anonymously and use privacy settings so that the prospective juror never knows that his or her information has been searched. 24
Attorney Journals San Diego | Volume 214, 2021
THINK AHEAD Before conducting searches, full juror profiles should be created for both the plaintiff and defense, i.e., a list of the demographic, experiential and attitudinal characteristics that are indicative of whether a person will likely be receptive towards either the plaintiff’s or defense’s case. Once these profiles are created, lists of topics to be on the “lookout” for can be created. These “positive” and “negative” factors produce insight in terms of whether each fact found is indicative of someone who will likely be more receptive to your side or the other side’s arguments at trial. It is also useful to be on the alert for characteristics that indicate which prospective jurors will likely lead during deliberations such as those individuals with advanced degrees, management positions at work, jobs that involve public speaking or those with expertise with issues involved in the case or prior jury service.
“FILTERING” THE SEARCH RESULTS When finding information about a prospective juror on the internet, it is typically not useful to indiscriminately save everything. As a better alternative, jury consultants typically create a summary sheet for each prospective juror, which contains only the information that is judged to be useful for jury selection based on the juror profiles that were created prior to conducting the searches. At the clients’ request, jury consultants can analyze the internet search results (along with any information provided on a written juror questionnaire, if applicable) to provide an overall rating of the juror in terms of the likelihood of him or her being receptive to your case arguments.
CONCLUSION If done improperly, internet research can turn out to be a “headache” that takes up a lot of your time from reviewing the unorganized voluminous information found without much positive gain. Performed correctly, internet research on prospective jurors can greatly enhance your chances of seating a jury that is receptive to listening to and appreciating your case arguments. n Miles Hutton is a Senior Consultant in DecisionQuest’s Boston office. Dr. Hutton works with high-profile clients on case evaluation, strategy development, venue studies and juror profiling. He has consulted a variety of cases throughout the country including insurance, contract, patent, securities, pharmaceutical liability, white-collar crime, antitrust, asbestos, and toxic tort matters.
