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3 Social Media and Electronic Research Tips for Lawyers

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By Jonathan R. Tung, Esq. on October 23, 2015 9:59 AM

These days, technology pervades almost every aspect of a law practice. A new trend involves using technology to help research judges and juries.

For example, online material (both social media and databases) will give lawyers a better sense of the environment in which they might present their case to the court. Electronic material makes the judge's habits and pet-peeves open knowledge for litigators. If there are too many red flags, a lawyer might even strike a judge from a case. How about that?

1. Peremptory Strike of the Judge -- You Strike Me? I Strike You!

A few jurisdictions in the United States now offer litigators the ability to strike a judge from a case at least once without establishing a bias. This is almost like Voir Dire of the judge, so to speak. Washington's Revised Code allows a lawyer to petition an affidavit of prejudice under RCW 4.12.050.

Certain rules and exceptions still currently apply to this practice, but even if that option fails, lawyers can learn about the habits and preferences of the judge who will be hearing the case.

2. Research Social media -- but Don't Solicit

During preparation for trial, courts have routinely allowed attorneys to use social media in researching judges and opposing counsel. However, it's usually a breach of ethics to solicit information the person you're seeking to learn about -- particularly if you don't fully disclose your identify and intentions. The latter should be obvious, but the former tip is not so obvious.

Be very careful about using someone else's identity -- even under good faith negligence. More pointedly, Model Rule of Professional Ethics 8.4(a) bans the use of another's account to access information you couldn't have otherwise accessed. So don't get cute.

3. Research May Be an Ethical Duty

Since electronic research became a regularly used tool in legal practice, so too has the expectation that lawyers use it in their due diligence. There is increasing opinion amongst legal practitioners that lawyers are duty bound to research juries and judges given the opportunity -- else, it's malpractice.

One court in particular has approved social media research of potential jurors. In Johnson v. McCullough, the plaintiff's lawyer searched online and found out that a potential juror had been a defendant in multiple debt collection cases. What resulted was a new trial for the plaintiff; and the Supreme Court of Missouri later encouraged reasonable internet efforts to ferret out litigation backgrounds of jurors.

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