There has been much talk about the use of blogs for monitoring public opinion and shaping trial strategy during the Casey Anthony trial. While that may be a useful strategy for high profile cases, you may wonder what impact the internet will have in your everyday run of the mill case. It has a very real impact, just in a different way.
The dangers of the internet are becoming so pervasive that it is now imperative that you understand the importance of doing internet research. Jurors are internet-savvy (even some of the older ones) and you can almost guarantee that at least one of your jurors will be going home researching every aspect of your case online.
If that one juror finds something harmful to your case, they will bring it up in deliberations and impact the rest of the jurors.
Jurors will research you, your firm, your experts, your client, and even medical terms or other issues related to your case. They will go on facebook, myspace, google, twitter, etc. They will research arguments in your case – whether a 5mph collision can cause brain damage. Whether brain damage can occur without a concussion. Whether there really is a policy that doctors have to do a differential diagnosis and rule out the most dangerous possibility first. Guaranteed, they will find articles and websites that dispute your claims and because the juror found them online, they think the sources are neutral and therefore more trustworthy than your experts.
What they find on their own online will trump your evidence.
So what do you do about it? You need to know what is out there. You cannot undermine what you do not know. Either hire someone skilled at internet research or find someone in your office who is young and can dig deep on search engines. That person needs to set aside multiple hours to research every aspect of your case and every person involved. You need to know what is out there so that you can mention it during trial. Know what arguments there are against you and have your experts explain the faults in those arguments so that when jurors come across it, they know why not to believe it. These days, you can lose a case because of jurors doing due diligence to research on their own. Your loss may have nothing to do with what goes on in the courtroom. Recognize this danger and devote time and effort to online research – even before accepting a case. The costs of avoiding it may be high.
There are many cases on which I consult where the question arises, do you bring the client to the courtroom? This is often an issue in brain injury cases and in cases of severe physical impairment, but it can be an issue in any case, such as soft tissue injuries.
The concern is that jurors will do one of two things:
- Either they will devalue the plaintiff’s injuries if the plaintiff looks and acts normal (or doesn’t seem to be in much pain), or
- They will see terrible injuries but view the client’s presence as a ploy to invoke sympathy.
Consider in addition to the above issues that if your client has horrendous injuries, the longer the jury looks at them, the more accustomed to them they become and the less disturbed they will be.
The problem with not presenting the plaintiff, however, is that jurors may hold it against you and if the plaintiff does have visible injuries (or severe enough mental injuries), you lose the chance to show jurors the extent of the damage. The best way to know whether presenting the plaintiff will do more harm than good is to test the plaintiff’s presence in a focus group or mock trial (usually by video so as to preserve confidentiality).
Focus groups aside, however, why not ask your actual jurors during voir dire which they would prefer? Tell jurors that you need to make a decision and you’re going to look to them for guidance. And then be honest. Tell them about your client and the extent of
injuries. Then explain that some jurors would require the plaintiff to be at trial so that you could at least see him/her and so that he/she is part of the process. Others say that it’s unnecessary for the plaintiff to be here and that if you did bring him/her here, they would get the feeling that you were trying to play on their sympathy (which you tell them earlier on and throughout voir dire that you are not going to do). Tell them that you are concerned that if you do bring him/her in, some jurors will say that you were trying to invoke sympathy and yet if you don’t bring him/her in, you’re afraid that some jurors will say you should have brought him/her here and will hold it against you and the plaintiff. Ask them for help on that decision. This will take the burden off of you and regardless of what you choose (you may have jurors disagreeing), you have put yourself off-code from being a typical lawyer
and they will understand that different jurors told you different answers.
In cases where your client is severely injured, the best solution is often to have the client present for voir dire and to testify, but quickly get them out of the courtroom at all other times. This way, the jurors get to see and evaluate your client and yet do not have time to get accustomed to the injuries. In such cases, it is easy to explain to jurors that your client is either in too much pain to stay in court all day and/or that his/her doctors have said that it would be mentally to difficult to hear all the testimony.
What did we learn from the Casey Anthony trial? Lots – and likely lots more once the jurors give their interviews, but for now, here are a few things to consider:
1. Justice does not always have a “TV ending” in that you walk away having the answers you sought and feel a sense of relief.
2. The jurors on this case, whatever they say in their interviews, must have all had strong personalities. To render a verdict that they know the public and media will persecute them for takes conviction and strength.
3. Do NOT over-promise in your opening. The one alternate juror who has spoken so far has already mentioned the promise of the prosecution to prove beyond all reasonable doubt how Caylee died.
4. Jury selection is greatly important – as are focus groups. You may not realize that a fine group of my colleagues were involved in this case starting 2.5 years ago, often doing work pro bono, running focus groups every day and shadow juries. I believe the defense verdict speaks to their tireless work.
Learning aside, even if you are surprised, angry, or skeptical of the verdict, it is important not to blame the jurors. What we all saw on television is not what the jurors saw and vice-versa. While we were watching interposed images of Caylee’s smiling face with her rotting skull, jurors were sitting in uncomfortable chairs looking at blank documents or simply listening to testimony. Do not underestimate the unconscious power of the media to sway the public. The jurors were removed from all of that. Further, the jurors did not say that Casey was innocent – only that there was not enough evidence to convict her. We can disagree with the verdict, but please respect the jurors. They gave up a lot and it is very rare to find jurors who simply do not care about doing a good job. Remember that the media trial we watched is not the same trial the jurors participated in.