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ATTENTION all Medical Malpractice Trial Attorneys

By Gerry Oginski

For medical malpractice trial attorneys like myself who wonder what jurors are thinking and what they're doing before entering the jury room, here are exact twitter messages from one twitterer waiting to be picked as a juror in New York:

"Heading to jury duty - limited blogging."
8:00 AM Apr 23rd from web

"Can you be exempt from jury duty by twittering court proceedings? Stark editor Matt, explores this option today."
11:21 AM Apr 23rd from web

"In the midst of a grueling selection process for jury duty. Live twittering capabilities limited. Medical malpractice case. Juicy. Hopin ..."
12:12 PM Apr 23rd from web

"One lawyer put me directly asleep. The other lawyer - seasoned, charismatic - I'm voting for his client. Thanks for the support folks."
12:15 PM Apr 23rd from web

"Here come the big boys with the judge. Signing off."
12:20 PM Apr 23rd from web

"Back from lunch, escaped being picked for the medical malpractice. Feeling I won't be so lucky again. Hearing rumors of Lykke Li on idol? wtf"
3:34 PM Apr 23rd from web

"@nisianista yeah so illegal. Now I have medical malpractice lawyers following my twitter. Not kidding."
5:33 PM Apr 23rd from web in reply to nisianista

"Still jurying... nothing funny happening today."
about 10 hours ago from web

These tweets come from @StarkNY.

These tweets are both eye-opening and somewhat disturbing. Why? It's eye-opening because after 20 years of practicing law, I finally get to look into the thought process of someone waiting to be picked as a juror in a medical malpractice case.

Typically, lawyers have no way to look into the minds of jurors, other than to ask them specific questions about their feelings, biases, and prejudices.

These tweets are somewhat disturbing though because in the last few months there have been a number of jury trials, both criminal and civil whose verdicts may be in jeopardy because of jurors who were twittering about the trial or doing their own research online. Those jurors totally disregarded the court's instructions not to do their own research and not to discuss the case with anyone outside of court.

When someone is chosen as a juror, they are admonished by the court not to discuss the case with their friends or family. They are repeatedly told not to do their own independent research. Despite these warnings, there are still some renegade jurors who disregard the instructions of the court and put the civil justice system and the case they are deciding, at risk.

Jurors who choose to do their own online research, or twitter their thoughts during a trial risk exposing biases, prejudices, and leanings before hearing all the evidence and importantly, before hearing the judge's legal instructions that applies specifically to their case.

This twitter user, @StarkNY clearly has no issue or problem with publicizing his thoughts during the jury selection process. While admirable in the sense that he wants to convey information to his twitter followers, if I were the plaintiffs attorney on the case, and learned he were twittering, I could theoretically follow him on Twitter solely to learn about his thoughts about the testimony and evidence during the course of the trial.

This would clearly give me an unfair advantage over my adversary as I would have an inside view into at least one juror's thinking as the trial progressed. Interestingly, I recently posted two educational videos addressing this exact issue: "Does an attorney who learns that a juror is twittering during trial have an ethical obligation to inform his adversary and the court of this fact?" Click on the titles to watch the video, Twitter & Facebook Jury Instructions in NY, Twitter Communication with jurors in New York."

In my opinion, an attorney has an ethical obligation to disclose this information immediately to both the judge and to the defense attorney.

Who needs a news reporter in the courtroom, when jurors can simply twitter their thoughts as the trial progresses? Both sides and the judge could see in real time what the jury is thinking as each piece of evidence and witness is presented. This way the playing field is leveled, and all attorneys can tailor their case based upon what the jurors are saying in their twitter messages. If this were to occur, this would be truly revolutionary in the civil justice system here in the state of New York.

Full post as published by New York Medical Malpractice Blog on April 24, 2009 (boomark / email).