Why Google’s Lawyers Were Right Not To Google Prospective Jurors
Earlier this year, in the Oracle vs Google retrial, Bob Van Nest and the Google team agreed to a ban on researching prospective jurors on the Internet – and in my opinion, they were smart to do so. I doubt that they would have found information of value on the Internet.
Anytime a shiny new technology comes along, naturally, people want to use it. And internet searching and social media are still shiny and new enough that lawyers and their clients want to use it. It seems logical – you want information about jurors to help make decisions, and the Internet is full of information! You want candid information that reveals who people really are – and you are more likely to find that in sources outside of a courtroom where people are sitting underneath a man or woman in a black robe with a gavel above their head. And of course you want a tactical advantage in the courtroom, and doing a better search than your opponent will give you a tactical advantage – right?
Most of you have probably heard the English phrase, ”It’s like looking for a needle in a haystack.” This phrase derives from English folklore, which is rich with tales of fools and simpletons undertaking hopeless tasks, but it’s a popular theme throughout the world. Usually, the fools fail to achieve their goal because they are unable to differentiate between what they are looking for and other information around them.
For example, there’s an Irish folktale about a man who catches a leprechaun and finds the leprechaun’s pot of gold buried under a plant. He ties a red garter around the plant to mark the spot and goes home to get a shovel to dig up the gold. The leprechaun cannot remove the garter, which is protected by a charm – but he finds another way to thwart the man by tying a red garter around every plant in the field. When the man returns with the shovel, he can no longer discern the location of the gold and he fails to find what he is looking for.
Now, I don’t mean to suggest that lawyers or their clients are fools or simpletons. But the theme of these folktales is spot-on to jury selection, because the key in jury selection is to find the few, rare pieces of information that will actually help you achieve your goal of identifying and eliminating your worst jurors.
Googling jurors on the Internet produces a field full of plants with red garters and no clue to the pot of gold if you pursue it randomly without understanding what you are looking for.
Even if you have access to proprietary databases with personal information about people, I’ve never personally been in a case where knowing what kind of car someone drives helps to determine if they are a good or bad juror for you. (Now, in a rollover case, that might be relevant information.)
The key, in other words, is discernment: knowing what information is important and the best way to quickly obtain that information.
So what is the most important information?
The single most important task of jury selection is to identify and eliminate jurors who are biased against your case or your client.
Bias most often results from incompletely processed traumatic experiences of prospective jurors or someone close to them that get triggered by case facts, parties or witnesses. Bias may also result from strong, well-formed opinions, although typically fewer jurors have relevant opinions than have relevant personal experiences. Your most important information, then, is information about experiences and opinions that will be activated by your specific case facts, witnesses and parties. Only rarely is such information available from Internet searching.
That is why spending your time or client’s money conducting “hit or miss” research on the Internet is in most instances not a good use of resources. (Keep in mind that it’s against the law – not to mention unethical and wrong – to friend someone on Facebook under false pretenses for the purpose of obtaining information about them.) Nine times out of ten – even nine and a half out of ten – the best way of obtaining the information you need is in the courtroom, in voir dire, from jurors’ own mouths or on a juror questionnaire.
Be wary of anecdotes from colleagues who tell you of the great nugget of information they got that caused them to strike a juror who initially looked great. It’s true that this happens. How much time and money did it take to get one nugget of information? And, was there an easier, cheaper way to obtain a similar result simply by knowing the right questions to ask in voir dire?
The time to use Internet searching is when you have a clear and specific idea about experiences or opinions that will be activated by your case that might actually appear on the public Internet or be relevant to information in paid database searches – and this is the only or best way you are likely to find this information. In my eighteen year career, which developed along with the Internet, that has happened only a couple of times.
The moral is that even for Google, more information is not necessarily better information. The best information is the information that you need to make the right decision and find that pot of gold.