Real Life and Grey’s Anatomy

Recently I wrote about the difficulties in helping clients to make sense of all of the information and misinformation that shows up in print and electronic media about the legal system.  But dealing with clients, with whom we can talk freely and confidentially, is simple and rewarding when compared to the process of trying to figure out what effect these sources have on jurors–and what to do about it.

It’s no secret that years of insurance company propaganda about tort reform and a supposed “malpractice crisis” have left their mark on the public, and by extension, on the jury pool, making it very difficult for injured victims to get fair trials. But there are much more subtle and invidious effects from popular media sources that are difficult to combat because they are so widespread and varied that it’s hard to be aware of them all, let alone figure out whether and how they might affect a trial.

I’m thinking of things like the endless series of legal and medical television programs–The Good Wife, House, Grey’s Anatomy, and their ilk–that make for good TV viewing, but may leave their audiences with a wildly inaccurate perception of how law and medicine work, and how they interrelate.  I’m also thinking of the frequent “news” reports of good deeds done by hospitals that regularly seem to appear in The Boston Globe on the morning of jury selection in a major malpractice trial.  It’s safe to assume that jurors are watching and reading these, and more, and that the impressions gained from these sources will carry into the jury room.

In many states, lawyers would be entitled to question prospective jurors thoroughly about what they’ve seen and read, and what their opinions are about those popular shows and ubiquitous articles.  But in Massachusetts, juror voir dire is virtually non-existent, and almost always conducted by judges–who view any questioning not directly related to the case as improper, unnecessary, and a complete waste of time.  New Hampshire is a little better, and Rhode Island is much better, allowing lawyers to ask the questions, and permitting inquiry on a broader range of topics.  Without this type of questioning, there are undoubtedly jurors seated whose views are influenced by what they’ve seen and read, in ways lawyers can’t even imagine.

For this reason, it’s important for lawyers to keep abreast of the popular media that might relate to a case being tried.  The first step in combatting this influence is to be aware that it exists–either by watching and reading, or by getting reports and impressions from family, friends and clients.  This is even more important during trial–a time when most lawyers are so busy with preparation for the next day that normal viewing and reading habits are abandoned.  Yet the media onslaught marches on–and when Dr. House solved a case very similar to the one I was trying the night before my closing argument, I was pretty glad someone told me about it!

With that awareness, lawyers can make subtle and not-so-subtle references and comparisons to help the jurors recognize that what they may have seen or heard doesn’t relate to the case at hand.  In extreme cases, it might even be necessary to ask the judge to inquire whether jurors saw or read a particularly misleading program or article–always weighing the possibility that the judge’s question may send four jurors rushing for their iPhones to see what they’ve missed!

It’s always important to be mindful of the world in which our jurors live, and the popular media is an important part of that world.  We as trial lawyers ignore it at our peril.

Truth is Different From Fiction

At one time or another, most lawyers have had to field questions from a client about something that’s been in the media.  Whether it’s a TV show in which a hapless witness gets raked over the proverbial coals by a ruthless and relentless opposing attorney, or a news report of an eye-popping jury verdict (usually from outside New England), we have to be aware of how our clients may perceive what they see and hear.  With that in mind, I offer a few reminders for lawyers and clients.

1.  Real life courtrooms look nothing like TV trials, and New England trials look very little like trials in many other parts of the country.  Fictional TV trials are scripted for brevity and drama.  Judges scold, lawyers yell and make speeches, and witnesses break down and confess all.  In real life, and especially in our conservative local jurisdictions, such things happen rarely.  Decorum and respect prevail, and it’s very unusual for a client to be attacked by an opposing lawyer, and even rarer for a witness to admit a mistake on cross-examination, no matter how obvious it may seem.  The take-home message for  clients: expect the trial to be more boring and less scary than TV.

2.  Defense verdicts don’t make good news.  Anyone who follows trial reports would think that the plaintiff nearly always wins–because that’s what gets reported.   Yet as every judge and lawyer can attest, the vast majority of personal injury trials end in verdicts for the defendant, with the injured party receiving no compensation whatsoever.  One reason, of course, is that many, if not most, cases have been settled before trial, especially the cases in which the defendant is fairly certain to lose.  But another reason is that readers and viewers find headlines reporting large-dollar awards much more interesting than stories in which the victim gets nothing.  And a third is that defense verdicts are so common that they’re not news.  Take-home message:  while news reports of “similar” cases may be interesting, they’re unlikely to have much to do with your case.

3.  Medical information and advice on the internet can be incomplete, misleading, or flat out wrong.  It’s a rare client who hasn’t googled his or her medical condition to get information about diagnosis, treatment, prognosis, and other details.  In the process, many clients become convinced, based on what they’ve read, that they have an open-and-shut case.  Take-home message: very little on the internet is admissible in court, and like court cases, medical situations vary from person to person.  So while the internet may provide interesting background reading, it’s no substitute for qualified expert evaluation of the specific case.

While it might seem tempting to ask clients not to read or research their situations, it’s neither realistic nor desirable.  Just as criminal lawyers usually don’t want jurors who claim to know NOTHING about a notorious and well-publicized crime (are they trying to get on the jury to get a book deal or have they been living under a rock?), I’d rather have a client who reads voraciously, thinks critically and questions thoughtfully.  Remember, jurors are exposed to the same sources as your client, and the client’s thoughts and questions, even filtered through the light of self-interest, are an important window on how the non-lawyer public may view a case.

But unlike clients, who often freely offer up thoughts about information in the media, the opportunities to find out what jurors have seen and read, and how it’s influenced their thinking are minimal before trial, and virtually non-existent during trial.  Later this week, I’ll talk about that problem.

Friend With Care

facebook screenThe ever-increasing use of social media sites such as Facebook, and the tendency of many people to post personal photos and details on their pages, present an almost-irresistable temptation to lawyers in search of potentially damaging information about witnesses or parties involved in their cases.  Yet despite the ready availability of this information, lawyers need to be mindful of their ethical obligations as they try to gain access to personal sites.

The overarching principle for lawyers to remember is that they must not be deceitful or misleading in attempting to access information from social media.  It is pretty clear that this means that a lawyer cannot use a false name or identifying details to induce the target to “friend” him.  However, different jurisdictions disagree about whether lawyers must inform potential “friends” of their connection to the case or the true purpose of their friend request.  Some states say that as long as the lawyer tells the truth–even if it’s not the whole truth–that’s enough.  Other jurisdictions suggest that the omission of significant information (especially when that information might cause the target to reject the friend request) is misleading and therefore unethical.

The second basic principle is that the lawyer can’t use someone else to do what he himself would not be permitted to do.  So it doesn’t solve any ethical problems to ask a paralegal, or even a friend, family member, or private investigator to make the request.  The lawyer is permitted to use information obtained by someone else, as long as the person was not acting at the lawyer’s direction.

Simply viewing a page that is accessible to any member of the public (even if it requires Facebook registration) is generally approved, because it does not involve any “communication” with the page’s owner.  Likewise, sending a friend request that contains all of the lawyer’s identifying information and connection to the case is not unethical, so long as the target isn’t represented by counsel–it’s just not likely to be successful!

While the Massachusetts Office of Bar Counsel has not yet addressed the social media issue, other jurisdictions are beginning to weigh in.  Just last month, the New Hampshire Bar Association issued an ethics opinion outlining the permissible methods of accessing social media under that state’s rules.  The New Hampshire opinion contains a helpful review of emerging ethics opinions from other jurisdictions.

But it’s pretty clear that if the owner has restricted access to the desired information, and refuses a proper friend request, the only safe way to access this type of information is through a proper discovery request such as a deposition subpoena directed to the witness and/or Facebook.  Anything short of complete transparency and honesty is a recipe for disaster.