Tennessee Supreme Court Frowns Upon Juror Facebook Messaging State’s Expert Witness

Let’s say you are a juror in a first degree murder case. Some advice: Don’t look up the state’s expert on Facebook and message him. Seems reasonable enough, right? Well, let’s talk about State v. Smith, — S.W.3d —, No. M2010–01384–SC–R11–CD (Tenn. Sept. 10, 2013). That appeal, as the court set forth, concerned “the appropriate response when a trial court learns during a jury’s deliberations that a juror exchanged Facebook messages with one of the State’s witnesses during the trial.”

Sigh.  Here we go again.

During void dire, the attorneys did not ask the prospective jurors if they knew the assistant medical examiner who performed the autopsy and would testify on behalf of the state (even though several or the jurors were employed by the Vanderbilt Medical Center, where the witness had trained). Of course, as is custom, the trial court instructed the seated jurors not to speak with any of the attorneys or witnesses. The trial proceeded as per usual. However, during the jury deliberations, the assistant medical examiner emailed the trial judge the following missive:

I can’t send you actual copies of the emails since Facebook is blocked from my computer here at work, but here is a transcript:

[Juror]: “A-dele!! I thought you did a great job today on the witness stand … I was in the jury … not sure if you recognized me or not!! You really explained things so great!!”

[Medical Examiner]: “I was thinking that was you. There is a risk of a mistrial if that gets out.”

[Juror]: “I know … I didn’t say anything about you … there are 3 of us on the jury from Vandy and one is a physician (cardiologist) so you may know him as well. It has been an interesting case to say the least.”

I regret responding to his email at all, but regardless I felt that this was a fairly serious violation of his responsibilities as a juror and that I needed to make you and General Miller aware. I did not recognize the above-referenced cardiologist or any other jurors.

First of all, yikes. The trial court informed the attorneys of the communication, and the jury ultimately returned with a verdict of guilty. The trial court denied a motion for new trial based on its refusal to permit the defense to question the juror about the improper communications. The court of appeals affirmed. Here’s what the Tennessee Supreme Court said:

Even though technology has made it easier for jurors to communicate with third parties and has made these communications more difficult to detect, our pre-internet precedents provide appropriate principles and procedures to address extra-judicial communications, even when they occur on social media websites and applications such as Facebook.

When the trial court received competent and reliable evidence that an extra-judicial communication between a juror and a State’s witness had taken place during the trial, it was required to do more than simply inform the parties about the email and then await the jury’s verdict. The trial court erred by failing to immediately conduct a hearing in open court to obtain all the relevant facts surrounding the extra-judicial communication between [the medical examiner] and [the juror]. This hearing may very well have necessitated calling both [the juror] and [the medical examiner] to testify under oath about their relationship and the effect of the communication on [the juror’s] ability to serve as a juror. Because the contents of the email focus only on events occurring before the jury received its instructions and retired to deliberate, the court may also have been required to call other members of the jury to determine whether [the juror in question] shared any extraneous information with other jurors.

[T]he portion of the trial court’s order that denies Mr. Smith’s motion for a new trial based on [the juror’s] improper extra-judicial communication with [the medical examiner] is vacated. The case is remanded to the trial court to conduct a hearing to determine whether [the juror’s] Facebook communication with [the medical examiner] disqualified him from continuing to serve on Mr. Smith’s jury. Following this hearing, the trial court shall make findings of fact and conclusions of law regarding whether the challenged communication requires [the juror’s] disqualification or whether [the juror’s] misconduct was harmless beyond a reasonable doubt. If, for any reason, the trial court is unable to conduct a full and fair hearing with regard to [the juror’s] improper extra-judicial communication with [the medical examiner], then the trial court shall grant Mr. Smith a new trial.

The facts of this case demonstrate that this technological age now requires trial courts to take additional precautions to assure that jurors understand their obligation to base their decisions only on the evidence admitted in court. Trial courts should give jurors specific, understandable instructions that prohibit extra-judicial communications with third parties and the use of technology to obtain facts that have not been presented in evidence. Trial courts should clearly prohibit jurors’ use of devices such as smart phones and tablet computers to access social media websites or applications to discuss, communicate, or research anything about the trial.  In addition, trial courts should inform jurors that their failure to adhere to these prohibitions may result in a mistrial and could expose them to a citation for contempt. Trial courts should deliver these instructions and admonitions on more than one occasion.

(Footnotes omitted).

What the heck was this juror thinking? The trial court instructed the jurors not to communicate with witnesses during the course of the trial. This means that even after hearing that instruction from the court, the juror ventured home from the courthouse, logged into Facebook, looked up the medical examiner’s profile, and send him a direct message on that social media site. Gee whiz.

Federal Court Denies State’s Motion To Seal Following Habeas Counsel’s “Ill-Advised” Facebook Post Citing Kris Kristofferson

Well, once again, we advise our lawyers friends to be careful what they post on Facebook. A new federal court case presents both social media and Blue Book citation issues.

On that note, we must direct your attention to Havard v. Epps, No. 5:08CV275KS (S.D. Miss. Aug. 30, 2013).  It’s a habeas corpus proceeding, not something we write about often here at Abnormal Use.  But because of its connection to social media, we feel compelled to offer an observation or two on this very new – and very brief – district court opinion. The Respondents in that case – various governmental officials including the  Mississippi Department of Corrections – filed a motion for clarification and motion to seal. Just so we can put it in proper context, here’s how the court described the procedural issue at hand:

This matter came before the Court on Respondents’ Motion for Clarification and their Motion to Seal. The Court earlier allowed Petitioner to amend his Petition for Writ of Habeas Corpus to reflect state court proceedings that have occurred since the original Petition was filed. The basis for Respondents’ Motion for Clarification is their contention that the Memorandum that Petitioner submitted in support of his Amended Petition may contain new claims that may go outside the scope of the amendment allowed by the Court. According to Respondents, “the State cannot determine whether (and where) Petitioner made substantive changes to arguments which Petitioner did not move to amend. Therefore, the State cannot identify which issues need responsive pleadings.” Respondents did file an Answer to the Amended Petition without objection; it appears that the issue lies with the Memorandum.

(Docket entry citations omitted).

The court denied the motion for clarification, but it is the motion to seal which interests us.  Apparently, the Respondents sought to ” prohibit any non-party from accessing documents filed in this case.”  That does not sound unusual, right? That, after all, is the purpose of a motion to seal.  Well, here’s the social media money paragraph:

Here, Respondents’ concern was apparently triggered by a Facebook post of one of Petitioner’s counsel about the Motion for Clarification discussed above. In particular, counsel wrote, “After responding to an asinine motion filed by the State, which not only wants to kill my client but doesn’t want to be bothered by actually responding to his claims of innocence, I am heartened by the following words penned by Kris Kristofferson.” However ill-advised this post may have been, in terms of the standards of professionalism by which lawyers are encouraged to govern themselves, this statement does not give rise, in the Court’s opinion, to a need to seal this record, for three reasons. First, there is no indication that the record of these proceedings in state court is unavailable to the public; second, the state court record was conventionally filed in this Court and is not available for electronic access; and, finally, information about this case is so widely available through Internet sources that closure of this record will not prevent dissemination of the details of the charges or the identification of the infant victim in this case. For these reasons, the Motion to Seal will also be denied.

(Emphasis added).

The State attached a grainy, black and white copy of the Facebook profile and wall of the attorney who made the post as an exhibit to the motion.  That attorney, in conjunction with the post, also embedded this YouTube post featuring the song. The motion to seal does not recite how the attorneys for The State came across the Facebook post in question, nor does it disclose the user who logged in to Facebook to print the profile.

Posting about one’s cases on Facebook is always a perilous enterprise, even if one’s Facebook profile is set to private, as any friend (or sometimes, friend of a friend) can access and capture the photograph.  Having one’s Facebook profile attached to a federal motion is not something one would expect, but as can be seen, it is a now possible consequence. Be careful out there, folks.

Our biggest disappointment, of course, is that the federal court did not see fit to quote – or cite to – the Kris Kristofferson.  If we were forced to guess, we would have assumed that the lawyer was quoting “Me and Bobby McGee,” written by Kristofferson (and Fred Foster) and made famous by Janis Joplin. “Freedom is just another word for nothing left to lose,” right?

But we would have guessed wrong.  We located the motion to seal in question, which was filed on August 26, 2013 (just four days before the order), and here is the Facebook post in full:

After responding to an asinine motion filed by the State, which not only wants to  kill my client but doesn’t want to be bothered by actually responding to his claims of innocence, I am heartened by the following words penned by Kris  Kristofferson. There are some similarities between prophetic songwriters and lawyers:

And you still can hear me singin’ to the people who don’t listen, To the things that I am sayin’, prayin’ someone’s gonna hear. And I guess I’ll die explaining how the things that they complain about, Are things they could be changin’, hopin’ someone’s gonna care. I was born a lonely singer, and I’m bound to die the same, But I’ve got to feed the hunger in my soul. And if I never have a nickle [sic] I won’t ever die ashamed. ‘Cause I don’t believe that no one wants to know.

How about that? That, by the way, is from Kristofferson’s “To Beat The Devil,” from his debut album Kristofferson, released way, way back in 1970.

On a final note, we do think the federal court in question missed an opportunity to cite to Kristofferson’s album using proper Blue Book formatting.  According to Blue Book Rule 18.6.1, “[i]f a particular song or musical work is referred to, cite it by analogy to shorter works in a collection according to rule 15.5.1”  That would be as follows: Kris Kristoferrson, To Beat The Devil, on KRISTOFFERSON (Monument Records 1970).

Facebook At Issue in South Carolina Family Law Case

Here we go again with the social media discovery, in our own territory no less. In McKinney v. Pedery, — S.E.2d —-, No. 5165   (S.C. Ct. App. Aug. 14 2013), a family law matter, a husband appealed the trial court’s ruling which had terminated his former wife’s requirement to pay permanent periodic alimony “when the court found that Husband continuously cohabitated with his paramour in contravention of section 20–3–130(B)(1) of the South Carolina Code.” Apparently, that statute requires the termination of alimony “on the remarriage or continued cohabitation of the supported spouse.” Of course, Facebook is at issue in this opinion. Our favorite paragraph of the opinion:

Wife submitted evidence to family law attorneys from Davis Law Firm [Husband’s Purported Cohabitant] kept all of her personal belongings at Husband’s residence, including her clothing, undergarments, shoes, and toiletries. Husband’s testimony that [Husband’s Purported Cohabitant] only packed an “overnight” bag when she traveled to Duncan to care for her grandchildren lends support for the conclusion that [Husband’s Purported Cohabitant] “lived under the same roof” as Husband. Further, Husband admitted that he gave [Husband’s Purported Cohabitant] an engagement ring and that [Husband’s Purported Cohabitant’s] relationship status was listed as “engaged” on Facebook prior to Wife filing for termination of alimony. We are not persuaded by Husband subsequently referring to [her] engagement ring as a “friendship ring” or by [Husband’s Purported Cohabitant] changing her relationship status from “engaged” to “in a relationship” immediately following Wife’s initiation of this action. Rather, this is evidence of Husband’s attempt to downplay their relationship and living arrangements, which we find unconvincing.

(Emphasis added).

So, there’s that.

Facebook Service Not Exactly Personal

During a recent bout of boredom, we discovered the Wikipedia page for “Service of Process.”  After reading through the standard fare for manner of service, we came across this interesting tidbit:

Courts in at least two Canadian provincial jurisdictions have allowed for substituted service via Facebook.

Service via Facebook?  Certainly, it can’t be legitimate to write, “You’ve been served,” on someone’s Facebook wall and have that hold up in a court of law.  We thought that this must be a case of a wiki author having fun editing a page to poke fun at Canadians, right?  Wrong, the Court of Quebec did in fact hold back in 2011 that Facebook messaging was an appropriate method for service of process.

In Boivin v. Scott et al., a Canadian plaintiff for whatever reason encountered difficulty serving a Florida resident.  In response, the Quebec court held (via Google Translate, mind you):

The only way for the plaintiff to the defendant to convey the original application is through his Facebook address. Indeed, it is a direct and convenient way to notify the defendant that proceedings are taken against her so she could prepare his defense and to be heard, which meets the main purpose of the service.

The court was certainly correct in that Facebook service would be direct and convenient – at least for the plaintiff.  The defendant gets to finally look forward to a Facebook notification that has nothing to do with Farmville.  Of course, that only applies if the plaintiff served the correct Facebook profile in the first place.

As technologically savvy as we may be, in our opinion, due process should never take a back seat to convenience.  There are reasons why personal service is preferred and that substituted service should only be used as a last resort.  The rules are designed to protect defendants, making sure they are properly notified of suits against them.

Service by Facebook, while convenient for the plaintiff, lacks these safeguards.

Facebook service simply has too many questions.  Here are a few that come to mind:

  • Just because a Facebook profile looks to be that of the defendant, who can guarantee it is?  Facebook contains millions of accounts, many real and many fake.  Serving the Facebook account of “John Doe of Greenville, SC” does not assure that the correct John Doe was actually served.
  • Not that plaintiffs would ever be so sinister, but what prevents a plaintiff from making a Facebook profile for the defendant he wants to serve for the purpose of service?  If you can make a Facebook page for God, making one for the defendant is not outside the realm of possibility. What safeguards exist to guard against such malfeasance?
  • Lastly, even if a person is served to the proper Facebook account, how does one know that the defendant actively uses the account and would find the complaint?  Certainly, there are tons of people with Facebook accounts who haven’t accessed them in years.  The accounts still show as active even though they have not been officially de-activated.  Do we really want to equate Facebook profiles in the same vain as a last known address? Plus, what if the account is active, but the message ends up in the somewhat hidden “Other” mailbox?

With all these questions, service by Facebook is not a process we would feel comfortably advocating.  Unfortunately, however, we think that this may be the wave of the future.  At least one U.S. court has ordered service of process by Facebook message.  We expect many more to come.

Facebook Friendships In Litigation – Exploring Them In Detail

In the past several weeks, we have commented upon two cases involving a Facebook friendship and its effect on pending civil and criminal litigation. One matter involved a family law matter in which a judge was Facebook friends with the daughter of two competing divorce litigants. Another involved a criminal case in which a juror was Facebook friends with a relative of the victim of the homicide being prosecuted. In both of those cases, the appellate courts discussed generally the nature of a Facebook friendship, but they did not probe more deeply into the specifics of the Facebook friendships at issue. Certainly, the trial counsel in the underlying cases could have litigated the nature and depth of the social media connection more deeply (and in fairness, perhaps they did, but such details did not make it into the appellate opinion). This post will offer a few questions that can be asked to probe these issues more deeply.

When did the Facebook friendship come into being? This is an important question because the origin of the Facebook friendship in question is quite relevant. Did it occur years before the trial? Did it occur prior to or during the events being litigated? Was the friendship request instituted because of a familiarity brought about by the events being litigated? Or, did the Facebook friendship predate the events being litigated and its origin have little, if nothing to do with the matter being tried?

How can the Facebook friendship be characterized? Sometimes, judges, as local officials, maintain Facebook profiles, and it may be that throngs of citizens in the community have connected with their local officials via social media. Thus, it may be telling to know how many Facebook friends each party to the friendship has. Are there thousands, or are their dozens? This may make a difference. This is true even if the individuals are not public figures. Do the users accept every friend request they receive, or are they more discriminating? Have they simply connected via a Facebook friendship, or do they utilize that friendship to communicate further? Do they post on each other’s Facebook walls? Do they send private messages? If so, when, and how often? And, of course, have they ever communicated about the subject matter being litigated through social media?

Who instigated the Friendship request? This could also be important. Again, if one of the parties to the friendship is a judge or community figure, it may be that they are inundated with friend request, of which the friendship at issue was once one.  However, it may be that the friendship at issue was borne of a closer connection, and thus, the identity of the instigating party should be determined.

What is being published on the two profiles at issue? To adequately address this inquiry, one would need to know what the parties to the Facebook friendship might have learned from each other during the friendship itself. Are the friends able to see each other’s private profiles (which may not be accessible to members in the general public)? Have either of the parties to the Facebook friendship posted on their profiles about the events being litigated? Might one friend have seen relevant information about the case on another’s profile?

Have the two met in real life? It’s always important to determine if the parties have met IRL or, rather, if the Facebook friendship is evidence of an offline friendship, as well.

Accordingly, these are issues which should be addressed in any such inquiry.

Facebook, Subpoenas, and Brady v. Maryland in Texas

You know how we here at Abnormal Use adore court opinions and social media.  Accordingly, we couldn’t resist sharing this very recent Texas state court appellate opinion, arising from a forgery conviction, in which the issues at hand were Brady v. Maryland and Facebook.

The opinion in question is Futch v. State, No. 10-11-00283-CR (Tex. App. – Waco July 18, 2013, no pet. h.) [PDF].

Apparently, just before opening statements, the following lenghthy exchange took place (as set forth in the opinion):

[Defense Counsel]: Yes. Judge, a few minutes ago [Prosecutor] made a Brady type disclosure to me. I don’t want to run the risk of misstating what he told me.

If you’ll tell the judge.

[Prosecutor]: I’ll do it. Judge, there was one witness that was on our subpoena list. Her name is Sarah Parrish. She drifts. She’s very difficult to find. She’s not stable. The subpoena on her actually was never served. It went to Coryell County with her last known address, and they told us—they sent it back, “Unable to serve subpoena.” She showed up today. Her remark to me was much like it was to the officers the night of this – when the defendant was arrested, that he had permission from the check holder. She, technically, was never served by subpoena. I saw her at lunch and I talked with her at lunch, and she said, “Are you going to need me right now?” I said, “no,” and she said, “Could I go get lunch and then come right back or be back by 1:30?” I said, “sure,” because I don’t really have any desire to call her to the stand. As soon as I saw [Defense Counsel] after that, I let him know what she had said, and that’s the gist of it. I mean, quite honestly, I find her completely untruthful, and I don’t see any need to call her. That’s why – in the interest of fairness and disclosure, I wanted to give him everything we had on that. Today is the first chance I’ve ever had to talk to her, at lunch.

THE COURT: She never actually got served with the subpoena?

[Prosecutor]: No. She just showed up today, because the way the officer –the only way the officer – she has no phone number, she has no permanent address that we can find her at, and either one of the deputies or investigators from Coryell County or another police officer – I’m not sure –sent her a Facebook message. That’s what her mom said was the only way to get in touch with her was to send her a Facebook message and wait. They didn’t know if they would have her here in time or not. That’s what they were told. They sent her a Facebook message, and she told me she got it, I guess, this morning, and she showed up.

THE COURT: Modern culture, nothing like it.

[Defense Counsel]: Judge, for the record, I’ve been looking for her, myself, for two months. I turned every rock I could, including using the Facebook …. We have not had any response at all. Now, this is a very crucial element of the offense, of course. We don’t have the witness. We don’t have any means to get her.

[Prosecutor]: She said – the best I can say is she said she’d be back at our office at 1:30, and we were over here before 1:30, and I said I’d come back for her if we needed her.

THE COURT: [Defense Counsel], did the defense issue a subpoena for her also?

[Defense Counsel]: No. I didn’t know where to issue it, Judge. I didn’t know where to send it.

THE COURT: So what is it you’re suggesting that I do about it?

[Defense Counsel]: Well, I want to get this crucial piece of evidence before the jury. I mean, it’s a crucial part of their case. I don’t want to break any rules of decorum or anything like that, Judge, but I want to get some guidance from the Court about how to do it.

THE COURT: Well, my suggestion is to find the witness.

[Defense Counsel]: I don’t know where to look.

THE COURT: I don’t either.

[Prosecutor]: I mean, she may be back at our office. Like I said, we left at 1:15.

[Defense Counsel]: Well, you know, I can’t get in the DA’s office without an escort, Judge.

THE COURT: Find out if she’s back in you-all’s office. If she is, serve her with the subpoena.

[Prosecutor]: Okay.

[Prosecutor # 2]: We don’t have a subpoena for her anymore. Right?

[Prosecutor]: It came back not returned. I don’t have another one to hand her now. It has come back unable to locate.

THE COURT: Where is the original subpoena?

[Prosecutor]: To be honest, I don’t know. I handed it to my investigator. It was sent to Coryell County.

[Prosecutor # 2]: It was sent to Coryell County, and they sent the return back.

THE COURT: Well, if she’s over there and she comes to your office, have her brought over here. Escort her with an officer, if you have to, and I’ll talk with her.

[Prosecutor # 2]: Okay.

[Prosecutor]: Do you want me to go look right now before we get going?

THE COURT: You can call. I want to get the jury in here.

[Prosecutor]: Okay.

On appeal, Futch contended “that the State’s suppression of evidence favorable to his defense violated the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution or Article 1, Section 19 of the Texas Constitution” and that the State withheld oral testimony in violation of [Brady] by dismissing a witness who had voluntarily come to court to testify for the State. However, the court of appeals found that Futch did not preserve the issue for review.  Specifically, the court held that Futch’s attorney’s generalized reference to a “Brady type disclosure” and failure to object or otherwise move for a continuance waived the complaint. Now, as a civil litigation blog, we are more interested in the social media component of this case than the criminal procedure angles. However, we all must serve subpoenas, and we all face encountered difficult to locate witnesses whose online presence may be the only evidence of their whereabouts. Accordingly, FYI.

Illinois Federal Court Compels Production of Plaintiffs’ Facebook Data

From a very recent court opinion: “Postings on Facebook and other social media present a unique challenge for courts, due to their relative novelty and their ability to be shared by or with someone besides the original poster. Nonetheless, a court may compel production of a party’s Facebook information if the party seeking disclosure makes a threshold relevance showing.”

You think? Well, sometimes, but not always. Traditional discovery rules and jurisprudence remains helpful in such inquiries.

The quote above is from Higgins v. Koch Development Corp.,  No. 3:11–CV–81–RLY–WGH (S.D. Ind. July 5, 2013).

Note: That opinion was released on July 5, which was a Friday, if you recall.  Someone didn’t take a three day weekend, apparently.

The fact of the case were these: In 2009, the Plaintiff’s visited a water amusement park.  One of the attractions at the park, the “Bahari River,” had  “muratic acid and liquid bleach filtered into the water by a filter pump that was connected to a breaker.”  The Plaintiffs alleged that they suffered toxic chemical injuries and pulmonary problems as a result of improper maintenance of the filters and pumps.

At their depositions, the Plaintiffs confirmed the existence of their Facebook pages (of which defense counsel was no doubt previously aware).  Interestingly, the Plaintiffs agreed to capture and preserve their complete profile history using the “Download Your Information” function (although they apparently did not produce this information to the defense, which prompted a motion to compel).  The opinion does not reveal when they actually preserved the information – whether it be in the deposition room itself or sometime later. In refusing to produce the Facebook data, the Plaintiffs invoked the traditional arguments (overbreadth, irrelevance) but also argued that the production of the data would violate the privacy rights of non-parties whose images became part of the Plaintiffs’ profiles via tagging.

The court quickly disposed of the relevance objection, noting that the specific claims made by the Plaintiffs in the lawsuit made the information contained on their social media profiles relevant indeed.  As the court observed, “Koch claims that [Plaintiffs’] Facebook content may reveal relevant information as to the extent their injuries have impacted their enjoyment of life, ability to engage in outdoor activities, and employment, along with their claims regarding permanent injuries, lack of pre-existing symptoms, and impairment of future earnings capacity. Since the extent of [Plaintiffs’] losses in these areas directly impacts the appropriate damages award, the court finds this information relevant.” No surprise there, especially if the Plaintiffs used Facebook as much as the opinion suggested they do.

Sophisticated as to Facebook’s privacy settings, the Plaintiffs also claimed the request violated their privacy rights (as they had made their profiles as private as Facebook allows them to be).  This is argument, of course, is particularly weak, as Plaintiffs clearly put their lifestyles at issue in bringing the suit and alleging those damages, and thus, the mere fact that they have shielded relevant data using Facebook’s privacy settings does not relieve them of an obligation to produce relevant information.  In rejecting Plaintiffs’ argument on these grounds, the court noted that Plaintiffs “cite[d] no cases supporting the proposition that setting a Facebook profile to ‘private’ entitles a person to a greater expectation of privacy or can act as a shield to discovery.”

This, of course, leaves us with the most interesting argument Plaintiffs made: that the request violated the privacy of non-parties. You’ve got to give the Plaintiffs’ lawyers points for creativity on that one. Essentially, Plaintiffs argued that their friends – other Facebook users – posted comments on Plaintiffs’ Facebook walls or appeared on Plaintiffs’ Facebook timeline by being tagged in photographs or posts in which Plaintiffs were also tagged.  Unpersuaded, the court characterized this argument as “unfounded,” citing another court which had already reached the conclusion that tagged photographs are discoverable if relevant because “once the plaintiff was tagged in the photos, they became in the plaintiff’s “possession, custody, or control.”

Clearly, this is the right result.  In light of the resistance the Plaintiffs exhibited in producing these profiles, we suspect there is some good impeachment available for the defense to find.

Alabama Court of Civil Appeals Affirms Denial of New Trial Over Trial Court’s Facebook Friendship With Parties’ Daughter

Another week, another new case on Facebook friendships.  This time, it’s Clore v. Clore, No. 2110967 (Ala. Civ. App June 28, 2013), a divorce case in which the wife appealed certain rulings relating to alimony and property-division and challenged the trial court’s denial of a request for a new trial and recusal based on the trial judge’s apparent Facebook friendship with the parties’ adult daughter.

Needless to say, we’re interested in the latter component of this decision by the Alabama Court of Civil Appeals.

Apparently, at a hearing on the wife’ motion for new trial, her lawyer introduced some exhibits printed from Facebook establishing that the trial court judge maintained a Facebook friendship with the adult daughter of the parties. (We wonder how it occurred to them to investigate social media connections in this matter.).  According to the opinion, the issue had never previously been raised by either of the parties, and the court does not offer many details about the nature of the Facebook friendship (i.e. how long the two had been Facebook friends, how many friends the judge and the daughter had on Facebook, et cetera).

In its opinion, the appellate court quote the trial court’s justification for denying the motion for new trial:

“This [Facebook] is a social networking site where the word ‘friend’ is used [in a way] that doesn’t have anything to do with the way before this Facebook.com ever existed—the way we used the word ‘friend.’

“So just because a person is connected to me on here in this manner doesn’t have anything to do with a personal relationship. I don’t have a personal relationship with this friend. We all live in a small town. I have heard both of you all’s names. I’ve heard [the daughter’s] name before we came in here today.

“And in fact, in the course of living here, we have all run into each other before. It—and I can say the same for [the daughter]. I can’t remember a specific time when that happened.

“But the establishment of an electronic friend over Facebook has absolutely no impact on what I have done and what I’m going to do.”

Reviewing the record below, the appellate court declined to reverse the rulings below based upon these issues:

The parties, in their appellate briefs, devote considerable argument to various secondary authorities assessing the abstract propriety of a “Facebook friendship” between, for example, a trial judge and a practicing attorney. However, the husband points out that at the new-trial-motion hearing the wife “offered nothing beyond the bare status of the parties’ daughter as a ‘friend’ of the judge.” Notably, the record reveals that the wife did not make any sort of showing with respect to the second of the two elements necessary to warrant the granting of a new trial based upon newly discovered evidence of a trial judge’s potential bias: that the pertinent evidence indicating bias that was discovered after trial “could not have been discovered before trial by the exercise of due diligence.”

For all that appears in the record in this case, the existence of the electronic connection between the parties’ daughter and the trial judge—whether indicative of a mere acquaintanceship as the trial judge noted on the record or something more private and sinister as insinuated by the wife—was discoverable by the wife’s counsel well before trial and does not amount to a basis for retroactively undoing the work of the trial court, especially given that under the law of Alabama “[p]rejudice on the part of a judge should not be presumed.”

(Citations omitted).

The husband has a point: all that the wife did in this matter was to disclose the existence of the friendship itself.  How long had the two been friends? Who sent the initial friendship request? Had they exchanged private messages? Had they posted on each others’ walls?  What information might the judge have had access to on the daughter’s Facebook wall that might have related to her family situation? None of those issues were explored, and as the court noted, presumably, all of this information could have been discovered before the trial.

A dissent by Presiding Judge Thompson did not discuss the social media issue.

Court Finds Juror’s Facebook Friendship With Murder Victim’s Spouse Not Grounds For Disqualification

As you know, we often write about social media and the law, so we simply must direct your attention to last week’s McGaha v. Commonwealth, — S.W.3d —- (Ky. June 20, 2013), in which the appellant, convicted of murder, unsuccessfully argued that he was entitled to a new trial because one of the jurors failed to disclose that she was Facebook friends with the victim’s wife. Wow.

Apparently, the juror – identified in the opinion as “Juror 234” was questioned during voir dire about her relationship with anyone involved in the case.  She admitted during questioning by the trial court that she knew “some of the [the victim’s] family, not close but I do know them.”  She described the relationship as “casual” and noted that she worked with the victim’s nephew.

Sometime after the trial, the Appellant’s lawyers discovered that Juror 234 was one of the victim’s wife’s Facebook friends.  (We wonder if his counsel investigated all of the juror’s social media presence.). After learning of the social media link, the Appellant sought a new trial based upon those grounds, a request which the trial court denied.

Unimpressed with the argument, the Kentucky Supreme Court parsed Juror 234’s answers to the voir dire questions, noting that although they were “succinct” she was never directly asked about any social media relationships.  However, the best part of the opinion comes when the Kentucky Supreme Court addresses the issue of how meaningful a Facebook friendship really is:

It is now common knowledge that merely being friends on Facebook does not, per se, establish a close relationship from which bias or partiality on the part of a juror may reasonably be presumed. This principle is well illustrated in this case. Here, an attachment to the supplemental motion for a new trial that Appellant filed with the trial court discloses that Juror 234 had, at the time of the trial, 629 “friends” on Facebook. She could not possibly have had a disqualifying relationship with each one of them. As we held in Sluss, “ ‘[F]riendships’ on Facebook and other similar social networking websites do not necessarily carry the same weight as true friendships or relationships in the community, which are generally the concern during voir dire.” Therefore, no presumption arises about the nature of the relationship between a juror and another person with an interest in the litigation simply from their status as Facebook friends.

So there you have it.  The appellant could not meet “the heavy burden” for challenging the verdict.  Strangely, no one challenged her for cause on the grounds that she casually knew – and worked with – the victim’s family in the real world. Oh, well.

Burned at Mediation by My Own Facebook Post!

The day after we run a post about one being impeached by one’s own social media, I, as a guest author here,  had to step in and offer up my own thoughts on that very subject. I use Twitter and LinkedIn for business purposes. If you ever want to know how I use them, I would be pleased to share that with you.  I can share some success stories, and perhaps some helpful hints, if you are so inclined. I do believe some form of social media should be in every lawyer’s marketing toolbox. But it is just that: one tool among many.

I am also on Facebook. I have some 400+ “friends.” I rarely turn down a friend request. I enjoy it. I have fun posting things and engaging in online conversations about the issues of the day. I typically do not post work related material – I only do so when the firm or one of our lawyers receives an award or honor.

But there are dangers to this type of interaction, and I was burned recently by a Facebook “friend.”

I recently mediated a case with a familiar Plaintiff’s attorney. The case had been around for a year or so. A month before the mediation, the Plaintiff’s lawyer sent me a request to be his friend on Facebook. As I  am often inclined to do ,  I accepted it. I have many lawyer Facebook friends – even some plaintiff lawyers.   I learned that the Plaintiff’s lawyer in my case had posted several items about our case – not naming the lawyers or clients – but just random things. The morning of the mediation, he posted that he was mediating a case in which the “powerful corporate defendant” had “mocked and disrespected” his “disabled”  client.


During the mediation, the Plaintiff’s lawyer opened by saying that he did not think we were taking his client’s case “seriously.” In apparent support for that position, he actually projected onto the screen one of my very recent Facebook posts about my plans to celebrate my fiftieth birthday. (Yes, I recently turned 50.) The Plaintiff’s lawyer said, “Maybe he was ready for this mediation last Wednesday before he started celebrating his weekend birthday, but . . . .” His sentence trailed off as if to suggest his doubt. He also commented that I had not been to any of the depositions in the case, as if sending my  experienced senior associate to the depositions was in poor from.   The associate was handling it under my close supervision.  (By the way, we had sent the mediator a statement ahead of time and had prepared a booklet of material to share with the other side and the mediator to be used in the mediation.). The mediation ended unsuccessfully.

So there you have it – my personal Facebook post used against me in my own mediation. I have now defriended this Plaintiff’s lawyer.

Perhaps I will defriend other lawyers in the future – I don’t yet know. But it’s now a dilemma. Some of you will take great pleasure in pointing out how this is why one shouldn’t have a Facebook account. I don’t see it that way, of course, but it is certainly a reminder of the perils of social media.