Chapter § 7.03 Social Media: A “Must Use” Tool for Jury Consultants

• Jurisdiction: United States
• Publication year: 2020

§ 7.03 Social Media: A “Must Use” Tool for Jury Consultants

At the outset, in a 2014 opinion, the ABA Ethics Committee concluded that lawyers can “passively” review a juror’s public social media profile provided that they do not “communicate” with the person via a request to access private material;³⁴ this same rule applies to jury consultants.³⁵ Today, jury consultants and counsel must appreciate the many ways in which social media can influence a trial and know how to use social media to a client’s advantage. As of February 2019, 72% of adults in the United States use at least one social media platform (up from 5% in 2005), and 80% of adults between ages 19 and 64 use social media.³⁶ In addition, many adults use these sites at least once a day.³⁷ YouTube and Facebook are, by far, the most used social media sites.³⁸ Instagram is a distant third, followed by Pinterest, LinkedIn, and Twitter.³⁹ Given the figure above, it is highly likely that most, if not all, members of the venire will be active on social media. Said differently, “[w]hen the embrace of social media is ubiquitous, it cannot be surprising that examples of jurors using platforms like Facebook and Twitter ‘are legion.’ ”⁴⁰

[1] Pretrial Use of Social Media

Social media can help ensure the success of pretrial jury research, such as focus groups.⁴¹ For example, social media sites like Facebook and LinkedIn can aid consultants in identifying and recruiting mock jurors who represent the demographic makeup of the actual jury pool. There is, however, a potential for bias against non-computer literate adults when using social media platforms in this manner. Jury consultants can also use social media to investigate and select (or reject) potential mock jurors they get from other sources. In addition to jury research, some jury consultants are using social media to test attitudes toward a brand in the form of advertisements or online testing platforms. Also, if the case or a party is in the news, consultants should regularly monitor social media to gauge public perception.

[2] Use of Social Media for Voir Dire

Virtually all jury consultants and trial teams now use social media to inform jury-selection decisions. At what point a consultant does this research depends largely on when the court releases the names of the jury pool to counsel; some judges provide the names a week or more before trial, while others don’t provide them until the morning of the trial. Even when the court releases the names of the venire on the eve of trial, jury consultants should have a person on hand who is trained to conduct fast and effective social media research. This research can be critical for removing non-ideal jurors from the pool. For example, this excerpt describes a real instance when the court dismissed a juror for hardship based on information the jury consultant learned through social media research:

[A]n internet search for a juror revealed a baby registry, which told us this juror had a son just two months before. Armed with this (and other information which revealed this person would have been a poor juror for us), we were able to ask questions of this juror so she could be dismissed for hardship. This strategy allowed us to avoid the risk of having to later burn a peremptory strike on her and save that strike for a more “dangerous” juror for whom we could not secure a cause strike. ⁴²

If possible, lawyers should ask questions about a potential juror’s social media use during voir dire, such...