Law Firms’ DIY Internet Research on Potential Jurors: Is It As Effective As You Think?
The impact of the internet on jury trials has been dramatic, both in terms of jury selection (e.g., conducting internet searches on potential jurors, monitoring of jurors’ social media accounts, and identifying jurors’ activities on news media social media posts) and the potential for jurors to engage in inappropriate online activities (e.g., searching for case related information, following media coverage, and seeking legal definitions). While both areas are important, the first of these developments will be our focus here.
The ability to conduct research on potential jurors has transformed jury selection, broadly expanding the amount and utility of information available to attorneys in advance of (or, in some cases, during ) voir dire. Trial consulting firms, like our firm, can field teams of internet researchers, internet search firms use algorithms to facilitate searches, and law firms have undertaken such research in-house. In fact, several legal commentators have championed in-house internet research by law firms. For example, John Browning (2019) notes that “where with just a few mouse clicks, an attorney can learn all about a prospective juror” and Luke Harle (2018) asserts that “Any attorney . . . with a few flicks of a mouse, can discover the person behind the jury member.”
Faced with the pressure (both financial and professional) to conduct internet research on potential jurors in-house, a question arises: how effective are attorneys/law firms in doing so? With the re-emergence of jury trials after the pandemic, this question gains greater significance. Fortunately, just before the pandemic, we decided to put this question to the test. A general summary of some of our findings will be presented below along with a detailed whitepaper available here.
What We Did
To address this question, I recruited voluntary assistance from several law firms (many thanks!) located in the southeastern United States who provided the fruits of their in-house research efforts in pre-pandemic trials (2019 and earlier). I also solicited the assistance of an internet research firm, Vijilent, Inc., (thanks also!) who volunteered to conduct internet searches on the original jury lists provided by the law firms. To ensure objectivity, neither the law firms nor the internet research firm had access to the others’ search results. In essence, both groups started with the same jury list that included whatever limited background information normally provided by the court.
Our sample consisted of four trial venires yielding a total of 187 potential jurors. Because of the exploratory nature of our study and the inconsistent collection of possible social media and other information by law firms, we focused our attention on one social media source, Facebook. This information was sought by all law firms and was one of the sources of information normally collected by Vijilent. Because the cases (all civil) varied from personal injury and medical negligence to securities law and fraud, we chose a basic measure of effectiveness, the ability to find valid Facebook accounts of jurors (and not what information from individual Facebook accounts was gathered).
What We Found
In terms of the overall results, we see that law firms did not do as well as Vijilent. Although it is impossible to know the true total number of Facebook accounts held by our sample since Facebook does not make that information available, as shown in Figure 1, 62% of potential jurors had valid Facebook accounts, while Facebook accounts could not be found for 38% of the jurors. This finding is consistent with survey results reporting approximately 69% of American adults as having Facebook accounts in 2019. Of the total sample, 25% of the jurors had Facebook accounts identified by both sources (law firms and Vijilent); 32% of jurors had Facebook accounts identified by Vijilent alone; 3% of jurors had Facebook accounts found by the law firms alone, while 2% of the jurors with Facebook accounts were not found by either source.
To get a clearer view of the effectiveness of the two sources in identifying Facebook accounts, I limited my consideration to only those jurors with identifiable Facebook accounts. The result for this comparison is most compelling. As shown in Figure 3, Vijilent was successful in locating 91% of identifiable Facebook accounts, while failing to find 9% of identifiable Facebook accounts. However, law firms found only 45% of identifiable Facebook accounts, leaving 55% of identifiable Facebook accounts undiscovered. Overall, a substantial advantage is held by the internet search firm.
Final Thoughts
While the study was not extensive, these preliminary data indicate that law firms conducting in-house internet searches may not be getting all they hoped for. While the reasons for this discrepancy in performance are not addressable in this study, based on my past experiences, several factors may play a role. These factors include (a) the use of algorithms/automated computer searches by internet search companies; (b) differences in training, experience, and resources between sources (e.g., internet search firms and experienced trial consultants may have greater familiarity and experience with internet searches whereas paralegals and attorneys may only conduct such searches infrequently; and (c) in-house practitioners may face other demands on their time given the pending trial that limits their ability to locate the more difficult to identify juror footprints. More research is needed to address the extend of such discrepancies in accuracy.
In addition to accuracy issues, there are content issues such as what social media information is “meaningful” to the case and, subsequently, to jury selection, that need to be considered. That is, we addressed accuracy in this study, not the value of the content discovered. The latter issue remains to be investigated.
The above discussion is not to say that law firms should not conduct internet research on potential jurors. There are often cost factors that prevent attorneys from seeking assistance outside the law firm. However, this research points out that there is a hidden cost to attorneys in relying on in-house internet searches that should not be ignored.
For more information on voir dire and jury selection, see Mastering Voir Dire and Jury Selection: Gain an Edge in Questioning and Selecting Your Jury, Fourth Edition (2018). Also, check out my companion book on supplemental juror questionnaires, Mastering Voir Dire and Jury Selection: Supplemental Juror Questionnaires (2018).
Recent media comments
Tom Hals (Wilmington) Analysis: Chauvin jurors facing 'through the roof’ stress as deliberations begin, Reuters (April 19, 2021)
Tom Hals (Wilmington) Analysis: Should Derek Chauvin testify in his own defense in Floyd murder trial?, Reuters (April 14, 2021)
Tom Hals (Wilmington) Analysis: Police and bystander accounts bolster Chauvin prosecution, Reuters (April 12, 2021)
Check out Dr. Frederick’s comments on mask and social distancing effects in the Derek Chauvin trial:
ABC News’ Kenneth Moton details what safety protocols will be in place during the first major in-person U.S. criminal trial of the pandemic. https://abcnews.go.com/US/video/covid-19-protocols-set-derek-chauvin-trial-76716395 Video: COVID-19 protocols set for Derek Chauvin trial (March 26,2021)
Available podcasts
The November 6, 2019 podcast from the ABA Journal’s Modern Law Library series features a discussion of voir dire and jury selection with Dr. Frederick in which he addresses tips for group voir dire, nonverbal communication in jury selection, and jurors and the internet, among other topics. Check out this 40-minute podcast on the ABA Journal’s website: http://www.abajournal.com/books/article/MLL-podcast-episode-110.
On January 25, 2019, Dr. Frederick presented a CLE program entitled “Mastering Voir Dire and Jury Selection” at the ABA Midyear Meeting at Caesar’s Palace in Las Vegas. Legal Talk Network conducted a short, 10-minute interview in conjunction with this program. You can listen to this podcast at: https://legaltalknetwork.com/podcasts/special-reports/2019/01/aba-midyear-meeting-2019-mastering-voir-dire-and-jury-selection/.
Dr. Frederick presented a 60-minute program based on his book, Mastering Voir Dire and Jury Selection: Gain an Edge in Questioning and Selecting Your Jury, for the ABA Solo Small Firm and General Practice Division’s November 21, 2018 session of Hot Off the Press telephone conference/podcast. Check it out at the Hot Off the Press podcast library at: Mastering Voir Dire and Jury Selection (americanbar.org)