Michael J. Sacopulos, Esq. General Counsel, Medical Justice

In most law schools around our country, second year students take “Evidence.” This is a technical class which teaches one rule and its exemptions after the next. What information is privileged and not, the hearsay rule and its dozen exceptions, relevant versus irrelevant testimony, and waivers all make up a body of law whose origins date back centuries to English common law. Rising above the trees to look at the forest, the general idea is to determine what information is fair and reliable to present to a jury. The thought goes that some information is simply too prejudicial or unreliable to be presented to a jury. At their core, the rules of evidence control information heard by jurors. Well, it seems that there may be some new rules…

Over the past several years one example after the next has emerged of jurors using social media and Internet searches to “supplement” the information they are being provided at trial. Last year a New York trial court judge received word that a juror had conducted some independent research during the trial by performing Google searches on the parties. Upon questioning, the juror admitted that he had “googled” the parties and gave the excuse that he was “curious.” Apparently he wasn’t the only curious juror. The trial court judge went on to question the remaining jurors. Eight of his fellow jurors also admitted to conducting Internet searches. Yes; that is nine (9) out of the twelve (12) jurors. The judge was forced to declare a mistrial. This is not an isolated incident. In another case, when a juror heard contested testimony relating to the drug Paxil, the juror conducted Internet research. The juror then shared the results of the Paxil research with fellow jurors. In yet another case, a juror was uncertain whether a defendant was guilty or not. What did she do? She conducted a poll on her Facebook page. This also resulted in a mistrial.

Recently, Mark Zuckerberg was named Time Magazine’s Man of the Year. The Facebook founder has indeed impacted American life. The Pew Internet and American Life Project has been producing some astounding statistics on Americans use of wireless devises to access the Internet. In the words of the Pew researchers, “The use of non-voice data applications on cell phones has grown dramatically over the last year. Compared with a similar point in 2009, cell phone owners are now (2010) more likely to use their mobile phones to: access the Internet 38% versus 25%.” It doesn’t take much imagination to think about what some of those jurors are doing with their cell phones during trial restroom and lunch breaks.

All of this indicates that an individual’s online reputation may have a major impact upon litigation that the individual is engaged in. In a very real sense, a defendant’s online reputation can become a major witness in his or her trial. While many physicians view the importance of their online reputation in terms of practice development and patient volume, they should be concerned for a whole other reason. Anyone engaged in litigation would be wise to begin taking action to address his or her online reputation.