"CourtBerry Syndrome" and Why Some Jurors Can't Resist Tweeting

Trial judges routinely warn jurors to avoid  using social media and the internet to research or comment on matters before the court during trials.  Nonetheless, news reports of jurors who disregard these instructions seem to be increasingly frequent.

Such juror misconduct has potentially disastrous consequences for the administration of justice.  A December 2011 Arkansas appeal provides a ready illustration - see Death row inmate gets second trial due to Twitter-obsessed juror:

In a tweet referencing the trial, Franco wrote ”Choices to be made. Hearts to be broken…We each define the great line.” He also posted updates when each day of the trial started and complained about the coffee. In addition, Franco posted “It’s over” less than an hour before the jury’s verdict was read in court. According to Associate Justice Donald Corbin, Franco was warned during the trial that posting updates to Twitter was forbidden. Corbin stated ”More troubling is the fact that after being questioned about whether he had tweeted during the trial, Juror 2 continued to tweet during the trial.” The Supreme Court justices of Arkansas recently asked a panel to look into restricting the use of smartphones during future trials.

Villanova law professor, Louis J. Sirico, Jr,. offers a generational analysis at Legal Skills Prof Blog as to why some jurors seem unable to resist tweeting and googling during trials:

In November 2008, the Lord Chief Justice of Great Britain, Sir Igor Judge, sounded a warning about the generational shift occurring as web-savvy citizens accustomed to getting their information online entered the jury box. Noting the consequences of this shift for the system of trial by jury, the Lord Chief Justice observed, “If a generation is going to arrive in the jury box that is totally unused to sitting and listening but is using technology to gain the information it needs to form a judgment, that changes the whole orality tradition with which we are familiar.

If our brains are, indeed being rewired by the internet, as early clinical research seems to suggest, is compulsive juror mistweeting simply the cutting edge of a genuine change in our physiology that is naturally finding its way into our courtrooms?

Is crackberry syndrome mutating into courtberry syndrome?

And how can our courts address this?  

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

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Why like social media?

I am quoted in this article on the legal profession's utilization of social media: Why like social media? - Lawyers Weekly

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Video: Legal Ethics in an Age of Technology

Legal Ethics in an Age of Technology...

That sounds a wee bit lofty, no?

Some of you are probably thinking, “Ethics?  We're talking about Facebook and Twitter, here, right?” Well as you will see in this video, the more involved a legal professional gets in social media, the more likely it is that an ethical question might just fall into his or her lap...



This video was originally presented at a Law Society of Upper Canada Continuing Professional Development Webinar, "Ethical Considerations in the Age of Technology" on October 7, 2011.

Join us on November 21, 2011 for Round II of our panel discussion with Bob Tarantino, Mitch Kowalski, Omar Ha-Redeye and yours very truly.  Register here.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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LSUC Webinar: Ethical Considerations in an Age of Technology - October 7, 2011

I'd like to invite our readers to participate in "Ethical Considerations in an Age of Technology," a free, accredited Law Society of Upper Canada webinar I'll be chairing on October 7, 2011 at 1:00 p.m.

We will be looking at the Ontario Rules of Professional Conduct against a backdrop of recent, newsworthy developments in the online world.

What professional responsibilities arise when we participate in social media - and in an online environment, generally - in which data breaches, hacking and good, old fashioned human foibles are increasingly prevalent? What are our duties to the profession and the public?

Joining me as presenters are a blue-chip panel of esteemed colleagues, namely Bob Tarantino of Entertainment and Media Law Signal, Mitch Kowalski of  FP Legal Post and Omar Ha-Redeye of Slaw.

Participants earn credit for two CPD professionalism hours.  Register here before October 5, 2011.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Thinking of Making the Switch from Facebook to Google+?

Are you thinking of switching to Google+?

Eweek takes on this question today, and provides ten compelling reasons to make the change. Most convincing to me are:

• The ease of directing and limiting your shared items to specified groups of contacts, and
• Google+ introduces revolutionary video chat capability that enables instant video conferences involving up to ten participants (or more, I suppose, if multiple people are on camera at any of the participating locations).

The only problems so far, however, are that practically nobody can really figure out how to use Google+, and virtually nobody is using it.

Lots of people are apparently exploring, according to media reports - 10 million users in two weeks is certainly not shabby. Still, there's not a lot of activity going on yet, outside of the unapologetic geekosphere, which has been drooling non-stop since this service was launched.

My early review is that this newest social media giant is here to stay. I suspect it will ultimately develop a peaceful co-existence with Facebook and Twitter as competing networks with very different identities and distinct purposes.

I'd be very surprised to see any mass exodus from Facebook, as some are now predicting. Google+ will not topple the others simply because it exists, no matter how sexy, shiny and new it may now be.

As its real points of difference from the other sites emerge, however, it will likely be a very strong, permanent player.

What will the Google+ identity and culture ultimately be? I think it's way too early to tell, but I am quite sure this service will slowly and convincingly continue to evolve.

At very least, I suspect it will emerge as a central social media hub for lawyers (and businesses generally), due to its built in integration with other Google services. Its video conferencing capability is certainly going to be extremely tempting, as well, for limitless commercial applications.

The virtual courtroom, for example, could be much closer to reality than we think.

Imagine arguing procedural motions from the comfort of your own office via Google+ video sessions that involve all counsel and the presiding judge. All of this, free of charge, and no waiting time wasted before you are reached on the Court's list.

For what its worth, the official Google+ iPhone app is now available. Google+ Mobile download information for all platforms is here.

The iPhone version is quite sleek and I'm sure it will get lots of use.

(If we can figure this darned Google+ thing out, that is).

My Google+ profile page is here, if you'd care to share.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Proposed California Law Tackles Social Media, Privacy Concerns

A proposed new law in California would have radical implications for Facebook and other major social media sites:

The bill, which would apply only to users in California, would prohibit sites from displaying users' home addresses or telephone numbers without their consent and would mandate services remove of any information about a user within 48 hours of the request, or face a $10,000 fine.

Under the proposed law, social networking sites would be required to have all users choose their privacy settings--explained in "plain language"--as part of the registration process. It also spells out a privacy setting that would be mandated to serve as the default on all sites and that would prohibit "the display...of any information about a registered user, other than the user's name and city of residence, without the agreement of the user."

Perhaps predictably, Facebook has already commenced lobbying against the bill, claiming it is a "serious threat" to "California consumers' choices about use of personal data." However, their argument essentially hinges on the idea that consumers of social media products won't be able to give up their privacy until after they've become familiar with the service they're using.

This seems to be an odd complaint, but from Facebook's point of view it's quite obvious: the site's growth is dependent on users being able to easily and rapidly find their friends and family on it, and if users don't enter personal information relatively early on in the signup process it becomes much less likely that they'll do so later on (since once one is a member of the site, people tend to dismiss additional requests for personal information - which is exactly why sites like Facebook ask for it up front), and thus impede Facebook's core usability.

The question, then, is whether the facility granted by being able to use Facebook (and for all that we say "sites like Facebook," we of course are really only talking about Facebook at this point, as most other social media services aren't nearly so personal-information-dependent for their use) is of more benefit, from a public policy perspective, than the privacy that one inherently must give up to use those sites effectively.

At this point, the question of Facebook's social utility is one that requires more serious debate. Facebook's use as a platform for collective action is only starting to be exploited, whether it is for political action or even modifying Facebook's design and policies thereof. On the other hand, "Facebook-stalking" has entered our lexicon for a reason: the site makes it exceptionally easy to cyber-bully people, and even to do so anonymously.

Does Facebook's "power for good" outweigh the dangers it can create with its relatively invasive standard privacy setting? Does it at least balance it enough that a law like the one proposed in California is needless? This writer is genuinely not sure; on the one hand, laws like this do seem somewhat nanny-statish, but on the other hand firmly reminding people that their privacy can be at risk when participating in social media seems to be an obvious good.

- Christopher Bird, Toronto

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'Issues' for Younger People

While some people might be happy their relatives can't get access to their email or other accounts, others are taking matters into their own hands. As attorneys, we are facing new issues for this generation. Savvy folks in their 30’s are requesting specific instructions for their Facebook page. Who would have ever thought?

This all raises the question: How do you protect your sensitive data while you're alive while at the same time ensuring your heirs have access to the necessary account information once you're gone? It's not as though handing out your passwords is always a good idea.

One solution is to give a lawyer or trusted relative all the information. Be sure to put this information in your will and/or estate plan and dont neglect to update it as needed. Another idea: Divvy up different accounts to different people. Or, store the information in a safety-deposit box or home safe -- just make sure someone can gain access to the box or safe.

There are also companies that aim to help you sort through these issues. One source is Legacy Locker. It allows you to store all log-in and password information for your online accounts as well as leaving arrangements for sending it to the appropriate people upon your death. Others have features such as writing and storing letters to be sent to relatives.

The bottom line today is that in our ever changing technological world, protecting assets has become even more tedious. Not only is it a good idea to have an updated estate plan but one that reflects everything you use in your day to day life.

Social Networks and Death

Social networking has become almost as important as networking in person. The ability to share our photos, information, news and professional events is not only easy today but incredibly convenient. While this is great now-thinking about what happens to all of these growing online accounts when we are dead isn’t likely on the top of our minds.

Do you have your photos stored on sites such as Shutterfly or Kodak Gallery or another? Do you participate in social-networking sites such as Facebook or Twitter? If so, you may want to exert some control over what happens to your profile after you die, but unless you leave your username and password with a trusted person, it will be tough for them to gain access.

What happens to your Facebook page if no one has that log-in information? A Facebook spokeswoman says that, "if a family member alerts us that a loved one has died, we will place the profile in Memorial State, or take the profile down, based on their wishes." In memorial status, certain profile sections "are hidden from view to protect the privacy of the departed." She adds: "We will not give access to the person's account."

Usernames + Passwords + Estate Planning?

With the constant fear of online identity theft, we create strong and varied passwords for all of our accounts. In fact, we even change these passwords often and never write them down or share them with anyone.That's all well and good while we are alive, but this safe protective measure taken while living can wreak havoc for our heirs after we die. With an increasing portion of our personal lives stored online in password-restricted accounts -- including bank accounts, automatic bill-pay arrangements, personal messages and even items with small monetary but major sentimental value, such as photos -- piecing together an estate after a death can cause major headaches. Let’s use banking as an example: If you have an online savings account separate from your regular bank account and the statement notifications are only emailed, not mailed, that account may get overlooked when your finances are disbursed to beneficiaries. Attorneys today are faced with days of searching for some accounts and other personal online site access - a costly task that can be avoided.