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David S. Osterman Quoted in "Social Media Transforms Employment Law Trials," SHRM Online: Legal Issues September 20, 2012

Social media has filtered into courtrooms, transforming jury selection; questioning of witnesses; interactions between jurors, lawyers and judges; and evidence. And employment litigation has been affected, David Osterman, an attorney with Goldberg Segalla in Princeton, N.J., told SHRM Online. By Allen Smith.

Jury Selection

“Trials are literally won and lost during jury selection,” Osterman said. “My No. 1 job as a trial lawyer is to determine what motivates my jurors. I need to uncover any hidden bias or prejudice—or anything else that a juror feels strongly about—that might impact the outcome of my trial.”

He added that “a good trial lawyer is also trying to judge whether the juror is likely to be a leader or a follower inside the jury room. If a juror feels strongly enough about an issue to take a public position or make a public statement about it, and that information is available on the Internet, I absolutely want to know about it.”

Osterman reflected, “In the old days, we had to rely on our skills in interviewing a juror face to face—where the court rules permitted it—or by way of questions that were asked by the judge with maybe a little bit of follow-up by the attorneys or judge.

“We were limited to an early impression formed by this face-to-face encounter,” he continued. “Your ability to make these crucial determinations was limited by the demeanor, candor and willingness of a prospective juror to speak in open court. If you didn’t ask just the right question, you may not have discovered something that a juror feels strongly about, something that might directly impact their view of your case. Frequently, trial lawyers based their jury selection decisions on little more than gut instinct.”

Now, Osterman said, “with the proliferation of social media, trial lawyers no longer have to rely on the candor and forthrightness of jurors to make snap judgments, but instead can use technology to gather potentially crucial information about their prospective jurors, sometimes even before the trial has started.”

He noted that in a recent trial, the federal court’s practice was to make available a list of all jurors being called in the next week for jury selection. “We then searched every name—approximately 250 in all—on Google, Facebook and OpenSecrets.org, which lists campaign contributions. It took just several hours to prepare a spreadsheet of the results. It proved to be invaluable. Through this process, we identified several jurors that we definitely did not want on our jury and one juror who we definitely did want on our jury,” he emphasized.

Questioning of Witnesses

Osterman said social media also “has proved to be an invaluable resource in preparing to question a witness. We routinely check the public profile of every witness we plan to present as part of our witness preparation, and we likewise check the available statements of witnesses we are planning to cross-examine.”

Hayes Hunt, an attorney with Cozen O’Connor in Philadelphia, agreed, saying, “Social media has been a gold mine or minefield for direct [examination] and cross-examination. Many witnesses have already admitted facts or commented on circumstances through social media, which allows lawyers to establish or undermine a witness’s credibility. Lawyers must know every relevant detail of a witness’ social media history before any question is ever asked.”

Interactions

Judge Mitchell Goldberg of the U.S. District Court for the Eastern District of Pennsylvania told SHRM Online, “With Facebook, Twitter and blogging, along with texting and e-mails, jurors have many more opportunities to both improperly convey their impressions of the case while it is proceeding and/or obtain prohibited information from social media sources.”

A June 2012 proposed model jury instruction on the use of electronic technology to conduct research on or communicate about a case stated, “You may not communicate with anyone about the case on your cell phone, through e-mail, BlackBerry, iPhone, text messaging, or on Twitter, through any blog or website, including Facebook, Google+, MySpace, LinkedIn or YouTube. You may not use any similar technology of social media, even if I have not specifically mentioned it here.”

“Jurors are increasingly being charged with criminal contempt for using social media,” Hunt remarked. “Last year, California revised the definition of criminal contempt to include juror misconduct related to social media.”

He noted that in Facebook terms, being a “friend” of a judge can have consequences. “There is no universal standard governing whether it is appropriate for judges to friend lawyers appearing before them or others involved in pending cases. States are slowly creating guidelines regarding judges using social media,” he explained. But at least one court on Sept. 5, 2012, has ruled that a judge may be disqualified in a case if one of the attorneys is a Facebook friend (Domville v. State, No. 4D12-556 (Fla. Dist. Ct. App. 2012)).

Relationships between attorneys and opposing parties in a lawsuit are also key. “Attorneys are not supposed to have direct communications with parties who are represented by counsel,” Osterman pointed out.

A New Jersey Office of Attorney Ethics charge reportedly has been filed against two New Jersey defense attorneys who allegedly directed a paralegal to friend a plaintiff to access content on his Facebook page that was visible only to friends.

Evidence

Courts also increasingly are considering the use of social media as evidence.

“Courts have been slowly grappling with the admissibility of a variety of social media information with authentication being an evidentiary hurdle that lawyers need to jump,” Hunt said.

Goldberg explained that “rules of evidence apply equally to information obtained vis-à-vis social media. A statement allegedly made on Facebook has to be properly authenticated to establish that the person who the lawyer claims made a statement actually made it.” One way to authenticate a statement is to have a witness acknowledge that he or she made the statement.

“Something on Facebook could be hearsay,” he added. “The rules of hearsay may apply.”

Impact on Employment Law Cases

“Employment law cases have certainly changed as a result of social media,” Osterman remarked. “It is crucial for defense attorneys to propound discovery regarding social media websites utilized and frequented by plaintiffs. Likewise, plaintiffs’ attorneys also request similar information relating to a company’s social media presence and accounts on websites like Facebook.”

Employment attorneys may consider such factors as whether a sexual harassment plaintiff is friends with her accuser, Hunt noted. “Have they had dialogue that undermines her claim? Has a workers’ comp claimant posted photos of himself moving furniture? Has the claimant in any case posted comments about his/her claims?” he asked. “Such information can win or lose a case.”

Allen Smith, J.D., is manager, workplace law content, for SHRM.

Reprinted from SHRM Online: Legal Issues, September 20, 2012, with permission of the Society for Human Resource Management (SHRM). ©SHRM 2012. All rights reserved.