by Laurie R. Kuslansky, Ph.D.
As the jury pool progressively ages and more and more jurors hail from the Facebook generation, it has become utterly crucial for litigators to consider social media in the processes of jury selection, jury consulting and persuasion. The statistics of Facebook’s prevalence alone are astonishing.
- Facebook has more than one billion members worldwide
- The average person spends about 12 hours/month on it
- The average person has 229 friends, but for the 18-34 set, the average is 318
- The average person creates three pieces of new content every day
- Fifty percent of all users log in every day
- Fifteen percent of all users update their own status every day
- One billion pieces of content are shared every day
- About one-third of the U.S. population is on Facebook
- Ninety-eight percent of 18-24 year olds use social media
- The fastest growing demographic of Facebook users is age 35 and older
As we view social media, we must remember that research has shown that – perhaps surprisingly -- most people present their real self, rather than their idealized self, on social media profiles. In court, in contrast, jurors may intentionally put their best or worst foot forward, depending on their agenda. Thus, social media offers a wealth of data about prospective jurors not evident in court.
Here are 10 places in the jury consulting process where we need to pay particular attention to social media:
1) Voir Dire: Ask questions such as, "Do you use any social media? If so, is it for personal use, professional use, or both? Which ones do you use and for what purpose(s) specifically? How often?" A good jury consultant will provide other useful questions.
2) Voir Dire Investigation: Learning about a potential juror's likes and dislikes from social media can be very helpful in making peremptory challenges. Make sure there is WiFi in the courtroom and that you have someone available who is fast and focused on running the names of prospective jurors on the major sites. It's a key part of the modern jury consulting process.
3) Peremptory Challenges: If possible, check sites such as Facebook and LinkedIn to see whether prospective jurors use discretion, have private or public information, and whether what they report in court matches their posted information or not. A demure female in court may post photos of herself on Facebook in a bikini. An unemployed person may claim a different profession or work status on LinkedIn or fail to report prior work history to the court. This information can greatly inform the use of follow up questions, challenges for cause, and the use of peremptory challenges.
4) Social Media Monitoring Pre-Trial: If you have a client that is in the news or a case that is in the news, monitoring social media can be an excellent way to get a sense of buzz around a topic.
5) Testing Attitudes Toward a Brand: One of the great benefits of social media is that one can easily run tests, often in the form of ads or other offline testing platforms.
6) Finding a Good Demographic Sample: If you plan to conduct a test, whether it be a mock trial, online jury research, or attitude surveys as part of the jury consulting process, social media like Facebook and Linkedin offer an incredible ability to slice and dice up the perfect demographic sample for a particular venue, keeping in mind that there is the potential for bias insofar as non-computer literate or non-users are excluded.
7) Social Media Monitoring During Trial: In a high profile or televised case, monitoring the sentiment on social media is important. Social media discussions may very well reflect the overall success or failure of the case. It may help you understand, in near real time, what people do or do not understand about the case or what questions need to be asked as part of an examination and addressed in closing. For example, during the highly publicized Casey Anthony trial, a jury consultant for Anthony’s attorneys analyzed more than 40,000 opinions on social media sites and used them to help the defense put together their trial strategy. Further, if you spot a juror using social media during a trial, you may have a case for a mistrial or new trial.
8) Social Media Evidence: Many cases involve the use of social media evidence. Facebook communications during divorce hearings may get a lot of press, but increasingly, we are seeing social media evidence in large corporate cases too. Since not all jurors are familar with social media, jury consultants and graphics consultants will need to work hard to explain it to the uninitiated, which is often related to juror age.
9) Finding and Evaluating Potential Mock Jurors: What better way to recruit mock jurors who fit a particular venue's demographic than via social media tools, when applicable? This applies equally well for online and offline juror recruitment. However, if you seek older, non-computer users, this approach may not fit your needs. Who doesn’t use the internet?
- 1/5 Americans does not use the internet.
- 59% of U.S. seniors don't go online.
- Nearly 60% of U.S. adults who didn’t complete high school don't use the Internet.
- Nearly 40% of people with annual household incomes less than $30,000 don't go online.
- Only 54% of people with disabilities are Internet users
However, “mobile devices such as smart phones are closing the gap for young adults, minorities, those with no college experience, and those with lower household income levels who are more likely than other groups to say their phone is their main source of Internet access” according to the Pew Internet Project.
10) Using what you reveal: If you learn information that is helpful to your case during jury selection, that is one thing, but if it is potentially harmful or reveals dishonesty by the prospective juror in their prior voir dire responses, don’t suffer in silence. Check the local rules and bring it to the Court’s attention.
Read other interesting jury consulting articles on A2L's site:
- Download: Storytelling for Litigators
- Trial Preparation Calendar that includes jury consulting
- Accepting jury consulting and litigation consulting
- Practice is why movies lawyers perform well say jury consultants
- 7 videos about body language
- Say goodbye to the David vs. Goliath myth
- 6 reasons to conduct a mock trial