Attorneys are using internet chat sites to test out legal theories with the public

We just got back from a tour of southern Kentucky and spoke with many lawyers about current issues.  One lawyer gave us a tip that we thought was pretty unique.   This skilled litigator said they had used web sites such as Facebook and Topix  to present issues in pending trials and to see what the “public” reaction was to their defense.  They found valuable input from the public on which issues would fly and which issues would not fly to the general public.

We then found an article on this very subject in the Indianapolis Star.   This is an interesting use of available resources.

Lawyers probe jurors’ thinking by Web checks

By Carrie Ritchie   The Indianapolis Star

INDIANAPOLIS – The MySpace photo showed a man standing with a group of friends, holding bottles of beer.

But when lawyer BJ Brinkerhoff took a good look, he saw more than a man having a good time. He saw the possibility of a sympathetic juror.

Brinkerhoff was defending a bar in a wrongful death lawsuit, and the man was among those on a list of potential jurors. Brinkerhoff figured a juror who enjoys an adult beverage might be a keeper.

The case ultimately was settled before trial, but Brinkerhoff’s strategy of scouring the Internet to search for clues about prospective jurors – their interests, their biases, their politics – illustrates how lawyers increasingly are using the Internet and social networking sites such as MySpace and Facebook to help screen potential jurors.

“It’s a resource that any modern-day trial lawyer would be foolish not to use,” said Larry Mackey, a partner at Barnes & Thornburg here who has done criminal defense and prosecution work on several high-profile cases.

Mackey, who prosecuted Oklahoma City bomber Timothy McVeigh in the mid-1990s, recalled that McVeigh’s defense attorneys used the Internet to research jurors.

Picking the “right” jury is among the most critical aspects of a trial. In some cases, lawyers spend tens of thousands of dollars to hire consultants who research jurors’ backgrounds and advise on what to look for.

More typically, lawyers rely on county-provided questionnaires that ask prospective jurors basic questions about employment, criminal history and their families. They also can question prospective jurors during jury selection.

Based on that information, lawyers may disqualify some jurors. Judges also may disqualify them.

Often, lawyers don’t learn the names of potential jurors until hours before selection. But sometimes, they are given a list a few days before a trial. That’s when social media and basic Internet searches can be particularly useful.

Lawyers have culled information from the Internet to rule out jurors for reasons that include attempted contact with extraterrestrials and an affinity for crime shows. A prosecutor in Texas even bought his staff iPads so they could research jurors while in court.

Facebook, My-Space, Google, blogs, Twitter – all are a potential gold mine.

“There’s no question that you have a better jury selection process because you have more information going in,” said Dennis Stolle, president of Indianapolis-based ThemeVision LLC, a litigation consulting firm that regularly vets potential jurors online.

When Stolle was researching jurors for a civil case that involved complex life-sciences technology, he learned through a Google search that a potential juror was an expert on that technology.

He found the man’s resume online and used it to develop specific questions to determine how he might feel about the case.

Blogs can be even more telling, Stolle said, especially if people freely post their thoughts on a variety of issues.

But is all this snooping into the lives of potential jurors ethical?

Yes, as long as lawyers are using information that’s open to the public, said Novella Nedeff, clinical associate professor of law at Indiana University School of Law-Indianapolis.

However, she said, if a lawyer were to try to “friend” someone on Facebook to get access to private information, that might violate ethical rules.

The Marion County prosecutor’s office is examining the various ethical issues, Chief Deputy David Rimstidt said.

“If it’s considered to be ethical,” Rimstidt said, “I assume that we would give our folks the green light to do this kind of inquiry because we need to find as much information as we can about our potential jurors.” That’s fine with Amy Campbell, 32, of Carmel, Ind., who recently was summoned for jury duty.

Campbell uses Facebook and Twitter often, and she freely shares her views, including those tied to politics. She keeps her Facebook account private, but her microblogging on Twitter is open to anyone online.

Her philosophy: Anything she says on Twitter, she’s comfortable sharing.

“It doesn’t bother me in the least, because that’s who I am, and if they think they need to look at that stuff to see if I should be on their jury, that’s fine,” Campbell said. “It’s not like I’m hiding anything.” But some who use social networking sites keep things private – or at least try to. They are making their social media pages private (only for selected friends to view). And many times, Stolle said, people who make inflammatory comments on blogs do so anonymously or under a pseudonym.

Sometimes, Nedeff said, searching for jurors online might not be worth the time and effort.

That can be true when someone has a common name or if clients can’t afford the extra work hours.

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