At first brush, there was nothing about the 74-year-old beauty contest supplier from the Bible Belt bastion of Texarkana that inspired trial consultant Robert B. Hirschhorn to want her on his high-tech client’s jury.
The case involved patent rights, and it was Hirschhorn’s job to identify jurors in the pool who might be receptive to the claim that a lucrative Internet dating service had copied his client’s search engine accelerator without paying for it.
As he now does routinely, Hirschhorn went online to learn more about the prospective jurors. On the pageant supplier’s business website, he found something he thought could bode well for his client. The septuagenarian, it turned out when he asked her about what he had learned online, had spent a lifetime marketing exclusive sequined gowns for beauty contestants only to have them copied without compensation.
“We loved her,” said Hirschhorn, who has been profiling jurors for more than two decades. “She told this story about how she would show these dresses to someone who claimed not to be interested and the next thing you know the same design would show up on a contestant. . . . It’s all about accusing people of using your property without permission.”
In the age of MySpace, Facebook, cyberspace sales pitches and blogging, the Internet is proving a treasure trove of insight into the thinking and values of those called for jury duty. And it has transformed the way many jury consultants do their jobs.
Jeffrey T. Frederick, head of jury research for the National Legal Research Group in Virginia, has been in the business long enough to remember when consultants had to drive by homes or talk to neighbors to get an inkling of a potential juror’s social status or political views.
Now with a wealth of information online -- newspaper letters to the editor, petition signatures, club memberships, campaign contributions -- retrievable with a couple of keystrokes, Internet surfing can produce a detailed picture of how an individual votes, spends money and sounds off on controversial issues.
“If a juror has an attitude about something, I want to know what that is,” said Frederick, who has been researching jurors for more than 30 years. The percentage of people who have substantial online profiles is still small, maybe 10%, he said, but it is growing exponentially and opening new avenues of exploration for Web-savvy consultants.
Jury selection for high-profile trials has become an elaborate, sometimes months-long process, as in the case of alleged “dirty bomber” Jose Padilla last year.
In that case, a survey containing more than 100 questions was mailed to 550 voters in the Miami area months ahead of the April 2007 start of the trial. But none of the queries managed to elicit a fact that trial consultant Linda Moreno considered vital when she discovered it on the Internet -- that one potential juror had resigned from public office and was under investigation.
Consultant Anne W. Reed of the Reinhart law firm in Milwaukee finds the Internet most helpful when vetting younger jurors, who tend to be avid users. She says she asks every prospective juror she faces: Is there anything you’ve written that I can read online?
“Then I go and read that. That’s by far the most helpful thing in learning about an individual,” said Reed, noting that nicknames and coded identifications sometimes make it difficult to find a prospective juror’s online writing.
Reed thinks online research can spare shy jurors the discomfort of answering probing questions in open court, but she said it had to be done discreetly to avoid any sense of invaded privacy.
Social networking sites are proving a useful tool in digging up information that can get an unwanted individual struck from a jury, said Marshall Hennington, a clinical psychologist whose Hennington & Associates has offices in Beverly Hills, New York and Miami.
“We’re really getting an opportunity to find out where the skeletons are hidden,” he said of jurors who seemed inscrutable in the courtroom.
In a recent murder case, Hennington recalled, a jury candidate denied knowing a fellow potential juror. The consultant discovered on the man’s Facebook page that they not only knew each other, they were cousins. That was enough to get the juror dismissed.
Hennington has no qualms about plumbing the Internet for information damaging to the opposition.
“They’re not giving me a call because they have a slam-dunk case. Clients call me because they know they have a difficult case and need to sell it to the jurors,” Hennington said.
As long as the information obtained about a juror is publicly available and of use to a client, “everything is fair game,” he said. “This is war.”
Some trial consultants, including sociologist David Davis of R&D; Strategic Solutions of Boston, aren’t as enthusiastic. He said he found the spread of personal networking more distracting than telling.
“Most of this information is what I would describe as noise,” he said. “And it’s so very difficult amongst all that noise to find anything that can be useful.”
As for concerns that the research may invade people’s privacy, analysts note that those with social networking sites control their own content.
“If you post something on the Internet for all the world to see, you shouldn’t be surprised if all the world sees it,” said Rebecca Jeschke, media coordinator for the Electronic Frontier Foundation, which champions technological advances as empowering consumers.
Lawyers also note that the information is available to all parties.
Hirschhorn, head of Dallas-based Cathy E. Bennett & Associates and coauthor of “Blue’s Guide to Jury Selection,” lamented that the beauty pageant consultant he had learned so much about on the Internet was ultimately struck from the jury pool by opposing counsel. The jury nevertheless decided in his client’s favor in EpicRealm vs. FriendFinder, he said, but he speculated that the award might have been higher than the $1.25 million decided by the jury if his ideal juror had been on the panel.
He said he knew why the other side wanted to bump the woman: They were doing their homework too. “Anyone who doesn’t make use of [Internet searches] is bordering on malpractice.”