The Business of Law – Marketing and Business for Enterprising Attorneys

When I was in law school there was a story that got told about a guy who tried to cut his hedges by holding his running lawn mower above his head by the handle.  You can guess what happened next.  He loses his grip on the lawnmower and ends up trimming himself rather than the hedges.   The end result: the addition to the lawnmower’s warning label of a ‘do not hold the lawnmower above your head’ caution.   My take on the story, admittedly once I stopped laughing, was that there should have been no need to state something so obvious. All the label really needed to say was that the operation of the lawnmower required common sense.

Today, the nation’s court system faces a similar dilemma as it seeks to manage juries in the age of smart phones  and Twitter. These and other new technologies and applications have not only changed the speed with which we can communicate with the world. They have also made it possible to communicate from virtually any place, at any time – even from a jury room, where such activity is expressly forbidden. Yet somehow it would seem that the ease and prevalence of these new technologies have stripped jurors of common sense when it comes to complying with the rules of the courthouse.

Let’s start with the basics.  Perhaps you’re a “Law and Order” junkie, or a follower of another television courtroom drama.  Maybe you’ve served on a jury, or witnessed a jury trial.  If you have, you’ve likely heard a judge give the jury instructions admonishing them not to discuss the case with anyone and prohibiting jurors from conducting any outside research beyond the evidence presented within the four walls of the courthouse.

Those basic jury instructions are now being forced to catch up with modern technology.  According to BLT: The Blog of Legal Times, a committee of the Judicial Conference of the United States has endorsed a set of model jury instructions for district judges to help them deter jurors from using cell phones, computers or other electronic technologies during jury service.

The intent of the rule is clear, and it’s consistent with the long-standing rules for juries.  Jurors should decide the case before them on the merits, based on only the evidence as presented in the courtroom.

To ensure this, judges will sometimes order juries sequestered, to prevent them from being exposed to outside information. But what do you do when a juror can access a dictionary, an encyclopedia and a copy of every newspaper in the world, all at the push of a button on their cell phone?

Similarly, in the old days, jurors were limited in who they could talk to on the phone while sequestered.  But how do you limit who jurors can talk to, when the media they communicate with expands to include not only mobile phones but also gchat, Twitter, Facebook, Blackberry Messenger, and text messaging?

The answer is that we make the jury instructions very specific, and we trust jurors to do the right thing.  Here are the key points of the proposed model federal jury instructions:

(Courtesy of our friends at: BLT, The Blog of Legal Times)

Before Trial:

…you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case.

…many of you use cell phones, Blackberries, the internet and other tools of technology. …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, through any internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube.

At the Close of the Case:

During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet service, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.

What do you think?  Important update, or needless revision?