Category Archives: Social Media

August 24, 2017

Expect a Majority of Your Jurors to Commit Online Misconduct

By Dr. Ken Broda-Bahm:

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You know it is possible. As those jurors leave the courtroom with their mobile phones on a break or at the end of the day: They could be off on their own evidence-gathering foray, looking up the parties, the lawyers, the witnesses, or the law. But, they’ve been given strong instructions in a very formal courtroom, and the judge has told them not only that is it strictly forbidden, but that it could also cause a mistrial leading to additional wasted time and money for the parties and for the public. With all of that, you might think that the act of a juror violating their instructions in order to willfully pursue their own investigation online would be the relatively rare act of an uninformed or reckless juror. If you thought that, you would be wrong. Based on a new survey, jurors committing online misconduct would seem to be the norm and not the exception.

In a blog article published earlier this month, “Juror Misconduct: More Prevalent Than We Think,” Dr. Marlee Kind Dillon, a consultant for the Long Island based Jury Consulting group DOAR, reports on the company’s own investigation of the likelihood of various forms of unauthorized communication. Not trusting some of the previous surveys administered in court and showing a relatively light incidence of such misconduct, the DOAR team conducted their own anonymous online survey focusing on whether jurors engage in online research, post about a case, discuss it with family or friends during trial, or with other jurors before deliberations. They found that online research outstrips the other forms of misconduct to the point that it actually reaches a majority: 56 percent indicated that, yes, they had conducted online research on issues relating to their trial while serving as a juror. This online misconduct exceeds the more conventional methods, but discussing with family and friends is still very substantial, with 42 percent admitting that they did it. Dr. Dillon’s article includes a lot of interesting detail regarding who searches about what and why. It’s a detailed and smartly illustrated article, and I’d encourage you to read the original. But in this post, I am going to bullet out what I see as the three main implications.   Continue reading

May 25, 2017

Account for ‘Many Hats’ in Social Media Profiles

By Dr. Ken Broda-Bahm: 

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Good advocates will spend considerable amounts of time wondering about their audience. They’ll also wonder about the parties and the witnesses on the other side. What do we know about them? Beyond what we see in the courtroom or learn about through the official procedure, what else is there? What are their attitudes, what do they do for fun, and what makes them tick? Today’s advocates have a pretty big window into that world that was not available to prior generations: social media. Checking on the public profiles has become a normal step in assessing the other side and, of course, in informing the process of challenging and striking jurors. It’s also not a bad idea to check on your own witnesses, and yourself, just to see what the other side will find. But one key fact to remember is that social media is not just one window into that task, it is many windows. 

According to Pew Research, the majority of adults on the internet have more than one social networking profile. And based on a new study (Zhong et al., 2017), those distinct profiles are not simply copies of each other. The study, explained in a Pennsylvania State news release, looked at 116,998 social media users, tapping into the About.me site in order to compare and contrast the individuals’ accounts across the ‘Big 4’ social media destinations: Facebook, LinkedIn, Twitter, and Instagram. The study found distinctions in the ways different demographic groups portray themselves (women display more positive emotional expressions, for example). But the most important finding is that individuals seem to employ different strategies in representing themselves on different sites. Following norms that are specific to each social media platform, most individuals will tacitly follow those rules, “subconsciously adapting the behavior modeled to fit in.” It is as if you’re seeing a different person on each platform. These personas stem from a desire to follow the culture and etiquette of each site. One author, Pennsylvania State Professor Dongwon Lee, explains, “A photo of someone’s colorful Starbucks drink may be popular on Instagram, but the same image post to LinkedIn would be frowned upon.” So, as advocates aim to take in the full picture, that means looking in all the windows — all the public ones I should say.  

No Surprise

At one level, the study’s results showing that individuals adapt their persona to different social media platforms is likely to be met with a, “Well, no kidding.” It’s only natural, after all, to think that users will share differently in the informal and formal settings, and those party pics are going to end up on Facebook, not LinkedIn. On the other hand, it’s an axiom in social science that what we think is true doesn’t always bear out in the research. So, in this case, it is important to note that social media venue differences do bear out. 

Don’t Mistake Informality for Honesty

Those of us who research public social media might be tempted to think that the more informal a setting is, the more truthful the individual is likely to be in that setting. As far as social media research in the legal context goes, however, I don’t think that’s the right way to think about it. First, we all don’t just have one true personality that is muted in more formal settings. Instead, we adapt: show different faces, wear different costumes. We share some facets in informal settings, and we share other facets in more formal settings. But second, the courtroom is one of those more formal settings. So while it is always interesting to see a juror’s Facebook face, what they bring to jury duty might be more like their LinkedIn face. 

Look at All of Them

The central principle is that everything matters. If you want a complete picture on a potential adversary witness, or juror, then consider all public communications you can find. That, of course, goes beyond Googling. Unlike the rest of the internet, social media sites tend to be what are called “walled gardens,” meaning that the information on that site is typically not exported to other sites, nor will it be necessarily found in general internet searches. So researchers generally need to check multiple sites, paying particular attention to Facebook and Instagram (the informal sites), and LinkedIn and About.me (the more formal sites). Twitter, for its part, seems to swing both ways depending on the individual and their network. The law of individual differences likely applies here as well: While there are broad tendencies on which platforms are more “professional” and which are more focused on “fun and friends,” different people are also quite likely to use the sites in different ways. So, look at as much public information and as many public profiles as you’re able to.  

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Other Posts on Social Media Research: 

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Zhong, C., Chan, H. W., Karamshu, D., Lee, D., & Sastry, N. (2017). Wearing Many (Social) Hats: How Different are Your Different Social Network Personae?. arXiv preprint arXiv:1703.04791.

Image credit: 123rf.com, used under license

February 2, 2017

Understand How the Presidential Campaign Rewrote the Book on Persuasion

By Dr. Ken Broda-Bahm: 

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Have you heard of a company called Cambridge Analytica? Well, chances are, they’ve not only heard about you, they know quite a bit about you. Until recent months, the company had been a little-known data analysis outfit based in London. But based on a number of reports, including a very informative recent piece in Motherboardthe group has been quietly but profoundly rewriting the book on mass persuasion. Supported by a somewhat secretive investment network, and appearing to work only on behalf of conservative causes, the group specializes in big data collection and micro-targeting of voters. Their exact methods and clients are not always subject to confirmation, but based on media reports, the company is believed to have worked for the successful “Brexit,” campaign for Britain to leave the European Union, and definitely played a key role in Donald Trump’s successful presidential campaign. 

Of course, campaigns and other persuaders have always used whatever is available. But the existence of “big data” — shorthand for systems to collect and apply information about all our transactions and communications — is a unique change to the landscape. And it’s only a matter of time before these new tools start to change the playing field for legal persuasion. There is already at least one company (Jury Mapping) that specializes in litigation uses of big data. While these early efforts might be, as I said in a past post, more of a shotgun than a scalpel, we can expect lawyers and consultants to explore those uses. In the wake of the recent election, however, I think that the role of big data and social media profiling carries some broad lessons for legal persuaders. In this post, I’ll take a look at four observations that have parallels in legal persuasion.  

One, Social Media is History’s Most Target-Rich Environment

It has always been possible to investigate people, but now that many have chosen to advertise their “likes” and affiliations to the public, it is definitely a lot easier. And those likes can tell a lot. One psychological researcher profiled in the Motherboard piece (Michal Kosinski), for example, proved that he could accurately learn personal characteristics — skin color, sexual orientation, political leaning — with about 90 percent accuracy just by knowing 68 of a given individual’s Facebook likes. With 70 likes, he knew more than that person’s friends know, 150 would tell more than the person’s parents know, and 300 likes would tell him more than the person’s husband, wife, or partner know. It isn’t just a matter of social media to collect, it is also a matter of using it to test. Cambridge Analytica, for example, claims that on the day of the final presidential debate, their team tested 175,000 different variations of online pro-Trump advertisements that day to see which messages were resonating with what slices of the population at that point in the campaign. 

Legal persuaders aren’t (and probably shouldn’t be) at that level yet. But social media searching has, just within the last year or so, become a very routine step in understanding a jury panel as well as a particular juror. 

Two, Psychometrics is Better than Demographics

The term is less familiar, but “psychographics” refers to the measurement of psychological traits in comparison to an overall population. The main focus is what is called the “big five” that defines an individual’s personality: openness, conscientiousness, extroversion, agreeableness, and neuroticism. Of course, those are all factors that are well defined and have been measured extensively. The problem is that for a long time, one could only obtain the individual measurements by asking people to fill out a rather detailed and personal questionnaires. What changed that, of course, is Facebook. Now, people will voluntarily fill out a quiz labeled something like, “Find Out Which ‘Game of Thrones’ Character You Are,” just so they can share the results with their friends and invite them to take the quiz as well. And hiding in most, if not all, of those quizzes are questions that yield the big five personality traits. And given that the tests also ask participants for permission to see the user’s likes and friend lists, the sponsor of the test — reportedly, it is often none other than Cambridge Analytica — is learning quite a bit about you that has nothing to do with Game of Thrones characters. 

Of course that sounds insidious, and it might well be, but the lesson that it carries is one that applies to all persuaders: psychological factors matter more than demographics. Cambridge Analytica’s CEO Alexander Nix said in a presentation last September, that previous campaigning has been based on, “A really ridiculous idea. The idea that all women should receive the same message because of their gender—or all African Americans because of their race.” I would argue that litigators trying to select or appeal to juries based on the same demographics are just as ridiculous. 

Three, Micro-targeting is Better than Macro-targeting

It shouldn’t be a surprise that companies like Cambridge Analytica are collecting and applying data on people. But what might be surprising is just how much data. According to Mr. Nix, “We have profiled the personality of every adult in the United States of America—220 million people.” Let that sink in a bit: everyone. And the level of detail on each person is reported to be pretty staggering as well — an average of 5000 data points per person. Cambridge Analytica has done that by using data brokers, using Facebook, and using the sort of quizzes described above. As Mr. Nix demonstrated in a presentation in September using data points on a map, we can look at just Iowa, then narrow it to just voters, then further to just Republicans, then just gun owners, and finally just those who are strongly motivated by fear. With that laser targeting, the right message can be delivered to the social media feeds of just the right audience. Of course that is the opposite of the blanket shotgun approach that is used in modern advertising. As Mr. Nix explained in the same presentation, “My children will certainly never, ever understand this concept of mass communication.” 

This focus on micro-targeting rather than macro-targeting applies more generally to persuasion as well. Litigators aren’t trying to persuade an abstract “reasonable person,” they are trying to persuade a particular and knowable judge, or a jury — and not just a “jury” but those particular members of the jury who are likely to be the higher-risk jurors or the swing jurors. 

Four, Both the ‘Push’ and the ‘Pull’ Matter

We often simplify persuasion to just the act of giving people reasons to support the position we advocate. But persuasion is at least two sided: There are “pull factors” that encourage people toward our views, and “push factors” that discourage people away from an adversary’s views. These are often called “alpha” and “omega” strategies. These twin factors of push and pull are on full display during a campaign, with positive advertisements aimed at attracting voters to your candidates and negative advertisements aimed at repelling voters from your opposing candidate. The micro-targeting enabled by psychographics and social media raised this to another level. For example, the past campaign featured so-called “dark posts,” that appeared only for people with unique profiles. For example, video advertisements were aimed at African Americans featuring clips of Hillary Clinton referring to some black men as “predators,” and residents of Miami’s Little Haiti district received news stories about the failure of the Clinton Foundation following the earthquake in Haiti. These were not meant to sway anyone to Trump, they were meant to cause people who would otherwise be Clinton voters to stay home. 

While the vote-suppression angle might sound unsavory, the broader point of addressing both the factors that persuasively play up your side, as well as the factors that persuasively play down their side, matter in trial advocacy as well. Most often, it translates to the advice to give jurors both, but balance your positive case with your negative case, and generally put the former first in order to build credibility. In other words, make sure your own house is in order before you start trashing theirs. 

As I have written recently, this past year might be remembered as the one where statisticians got it wrong, but those were the statisticians trying to predict the results. The statisticians using psychographics and micro-targeting to influence the results might have turned out to have been much more effective. 

(Thanks to Kathy Kellerman for suggesting the article) 

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Other Posts on Data Analytics: 

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Image credit: 123rf.com, used under license

April 14, 2016

Protect Juror Privacy But Don’t Ignore Public Information

By Dr. Ken Broda-Bahm: 

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The internet age has brought new tools but also new concerns to the task of jury selection. The ubiquity of social media and other forms of online presence has meant that lawyers, trial consultants, and other specialists now can and frequently do consider that information when selecting a jury. But that “voir Google” ability has given rise to an increasing feeling that there is something sneaky or wrong in tapping that source of information. The current Oracle v. Google copyright case has served as a focal point for that concern, and it received a good write-up in a short article in Corporate Counsel entitled, “One Judge is Banning Web Research on Jurors, Will Others Follow?” The judge in that case, William Alsup of USDC California, wrote that, “There are good reasons to restrict, if not forbid, [internet] searches by counsel, their jury consultants, investigators, and clients,” and followed up by pushing the parties to an agreement to foreswear such searches. That case could be unique, considering that it involves two internet giants who might be presumed to have more access to information than the average party. But then again, it might not be unique since the judge used a rationale that could apply to any case. In the Corporate Counsel article, the author reports on a Federal Judicial Center survey in which 120 judges, 26 percent of the sample, reported already prohibiting social media research of potential jurors. Several quoted in the article also suggest it could be a trend. Jury consultant David Barnard, for example, predicts that “We’re going to start seeing more opinions on this issue.” 

If wiser voices prevail, those opinions should follow the lead of the American Bar Association’s Formal Opinion 466 clarifying that lawyers and those working with them should obtain and use public information in good conscience, but should not breach any walls in order to get at any information a potential juror would reasonably consider private. The privacy of jurors and venire members matters, but the concept of privacy should not be broadened to the point that it includes information that is clearly in the public domain. In this post, I’ll make the argument that, while important, juror privacy shouldn’t require anything like Judge Alsup’s broad prohibition of internet searches on potential jurors, and that the better course is to recognize and enforce the principle that private information is private, but public information is public. 

Juror Privacy Matters

In his ruling, Judge Alsup wrote that jurors are “good citizens commuting from all over our district, willing to serve our country” and that “their privacy matters.” And that is absolutely true. Answering the call for jury duty doesn’t mean that citizens should consent to any form of abuse or intrusion. Disrespect could further a loss of faith in an already imperiled civil jury system. 

But “Privacy” Is Based on What’s Private

Privacy law is based on the principle that what we consider private doesn’t extend to all information about a person, but only to those realms where the individual would have a “reasonable expectation of privacy.” That means that citizens must have a basis for thinking their information is private, and that basis must be a rational one. Whether that applies to a given individual’s social media activity depends on how that individual uses the internet and social media. For many, perhaps most, a good part of that information is public, and no firewall or login shields it from anyone who knows how to Google. 

Public Information Should be Fair Game

Imagine this. A trial team arrives for trial knowing that one member of the venire is the editor of the local newspaper, and today’s edition carries an editorial directly bearing on issues relating to the trial. Would any reasonable judge — or any other reasonable person — expect the trial team to avoid every newsstand on the way to the courthouse in order to avoid knowledge of what that venire member is publishing? No, I think most would consider it malpractice for the trial team to not buy a paper and read the editorial. Now, we don’t live in an age where most potential jurors are writing editorials. But we do live in an age where many to most potential jurors are publishing content that is similarly public and similarly available. You might say the analogy is strained because social media isn’t news, but that is changing as social media is well on the way to becoming the public’s main source of news. 

Treating Public Information as Private Improperly Restricts Voir Dire

Now, at this stage, readers might think, “Okay, a lot of people are making their personal information public these days, but it really should be private.” But that is an individual choice. When we are talking about potential jurors, we are talking about adults, so the person in the best position to decide if an individual venire member’s online information should be public or private is the individual venire member. 

Judge Alsup also emphasized a basic reciprocity agreement. “We will go to some lengths to exhort the jury not to conduct internet searches about the case or the lawyers,” he points out, and “It will be hard for [jurors] to understand why the lawyers can do to them what the jury cannot do to the lawyers (and the case).” But that comparison ignores a critical difference in roles. The jury’s job is to decide the case based only on what is admissible, so their instructions not to research keeps them focused on the only information that is relevant at trial. The attorneys, on the other hand, have the job of deciding based on any and all available information which venire members would carry a potential bias in the case. 

There is also concern from Judge Alsup over how that information could be used, beyond the discovery of possible bias. “If a search found that a juror’s favorite book is ‘To Kill a Mockingbird,'” he wrote, an attorney could make use of that information “in an effort to ingratiate himself or herself into the heartstrings of that juror.” But, of course, counsel could do the same if that potential juror simply walked into court carrying a copy of ‘To Kill a Mockingbird,” and who would require any Atticus Finch-loving lawyer to just ignore that information? Ultimately, it is hard to see this kind of audience adaptation as posing any kind of real threat to our system, depending as it does on the persuasion of real people. 

In the Oracle v. Google case, Judge Alsup did not strictly prohibit parties from conducting web searches on juries. Instead, he gave the parties the choice to either jointly agree to avoid these searches, or to risk their credibility by informing the jurors of the fact that they had conducted these searches. They took the former in exchange for increased oral voir dire time. That extended oral voir dire time is useful, but at the same time, knowing what they say in court really cannot substitute for knowing what they say out of court. Knowing the judge’s agenda, it seems like the parties intelligently decided to cut their losses. If decisions like this gain any momentum in the future, however, I for one am hoping that more parties opt to fight for the right to access the public information that can and should inform jury selection. 

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Other Posts on Social Media and Selection: 

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Image credit: 123rf.com, used under license 

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October 28, 2013

Play it Safe with Clear Instructions (Especially on Juror Social Media Use)

By Dr. Ken Broda-Bahm: 

293346674_178f93d998The vast majority of jurors are conscientious and careful, and at least aim to be compliant with instructions. At the same time, there are a few examples in recent years that would seem to challenge that perception. For example, there is the widely reported story of the Miami mistrial in which fully nine of the twelve jurors admitted to using the internet to collect or share information. Or the UK juror who conducted on online poll asking her friends how she should vote in a child abduction and sexual assault case. Or the 2011 North Texas juror who Facebook “friended” the defendant during trial. 

At this point, stories of the risks posed by social networks have successfully infiltrated the legal networks, and nearly all U.S. and state courts have adopted some form of instruction on the limits on jurors’ social media and internet use. And there is at least some research supporting the belief that these instructions work to a large extent. But a recent review of court practices across the country, by Florida Judge Antoinette Plogstedt (2013) and soon to be published in the Cleveland State Law Review, reveals that there is some spottiness to the instructions themselves. Nearly all will tell jurors to not communicate about the case, the parties, or the process via social media. Some, however, will communicate the reasons for that avoidance and others will not. Some will explicitly identify the main services to avoid – e.g., Google, Facebook, Twitter, and blogs – and others will not. Some will talk about the consequences of violating the instruction, like mistrial and sanctions, and others will not. Judge Plogstedt recommends a thorough and repeated instruction, and includes an example in the final appendix of her article, and also recommends adapting practices like juror note-taking, questions to witnesses, and predeliberation in order to address juror curiosity and need to be an active consumer without yielding to the temptation to violate their instructions. There are good reasons to believe that relatively rare situations of misconduct would be even more rare if the instructions were more specific and concrete. This post takes a look at Judge Plogstedt’s article and offers a checklist of the features every social media instruction should include. 

The Research: Active Jurors and Inconsistent Instructions

There have been a number of articles on the phenomenon of the Googling, Tweeting, and status-updating juror, but Judge Plogstedt’s article is unique not only in its comprehensive scope – 65 pages – but also in its focus. Unlike many of the other pieces of commentary lamenting juror misconduct online, this article looks specifically at why the juror might be led into temptation. And it is not just the ever presence of social media or the fact that everyone has the internet in their pocket these days. It is the more basic fact that jurors expect to be active, not passive, audience members. They want to be hunters and not grazers, information wolves not information sheep. And the message of these instructions has to be: “In some ways you cannot – you need to trust us to gather and select the information.” But another message is that jurors should understand the proper ways they can be active, and should have as many of these legitimate opportunities as possible. “The modern juror is less likely to initiate juror communications and research on social media sites and internet when the prohibited conduct is clearly described, reasons for the prohibition provided, constant reminders offered, and sanctions outlined,” the judge argues. “More active and engaged jurors, progressive and well-informed judges and diligent lawyers should prevent instances of juror misconduct in emerging technology and social trends.” 

Another novel point in the article is Judge Plogstedt’s recommendation to address the reasons why a juror could be tempted into violating their instruction. The judge’s proposed version, for example, notes “Despite judges’ instructions, jurors violate the court orders and use the internet and social media to satisfy their own curiosity, to explain matters that may not be explained well in the courtroom, to improve their decision making role, and to fill in the missing gaps in the information. Other times, jurors are bored or cannot break their habits or routines in accessing their phones and computers.” Now, some might fear that language like this is giving jurors ideas, but chances are good that it is nothing jurors haven’t thought of before. And identifying with their state of mind can substantially increase the chances that they’ll comply with the instructions, as long as that identification is followed up with a clear prohibition and discussion of consequences.

The article quotes University of Dayton School of Law Professor Thadeous Hoffmeister’s good observation that the reasons for noncompliance come down to three C’s. Jurors seeking elicit information or communication may be conscientious (wanting all possible information), curious (wondering what information was kept from them), or confused (feeling they need to define a term or investigate a legal concept). Perhaps the best message of the article is that just clarity is not enough if the instructions and the courtroom presentations do not address the other three C’s as well.

The Checklist: Every Social Media Instruction Should… 

I want to include a quick distillation of the factors Judge Plogstedt reviews as being key to effective social media instructions. 

  • Notify jurors that information obtained out of court that might appear relevant to the case has a high likelihood of being inaccurate or irrelevant. 
  • Inform them that the parties have a right to respond and cannot do so based on information gained out of court. 
  • Identify the specific devices (laptops, tablets, smart phones, etc.) that jurors should be wary of using improperly. 
  • Name the actual sites and services that could lead to improper communications: texts; emails; Wikipedia; Google and Google Maps; Tweets; blog posts; Facebook updates, likes, or comments. 
  • Inform jurors of potential sanctions for electronic misconduct, including mistrial, contempt citation, fines or imprisonment.
  • Let jurors know they have an obligation to report any known misconduct.

While this list is fairly comprehensive, there is one additional instruction that courts should consider. Telling the empaneled jurors not to use the internet or social media to communicate about the case would not prevent a ‘friend’ from posting or tweeting to the sitting juror a comment or a question about the case. Indeed, that is exactly what happened in one event Judge Plogstedt relates. During a criminal corruption trial in Baltimore, one nonjuror friend posted a comment reading “not guilty” to the juror’s discussion, and the juror then responded “NO AL, GUILTY AS HELL…SORRY.” To head off this possibility, courts should also consider adding an instruction that would tell jurors what they can say on social media. The instruction might be something like the following:

In view of these instructions, as well as the need to avoid having any of your friends or others in your network initiate communication with you regarding the case, the parties, or your jury service, you may consider providing a status update, a tweet, or some other social media posting that briefly explains these constraints. For example, ” I am in jury duty between the following dates and, during that time, I will not be able to comment on the case, the parties involved, the court personnel, the jury process, or any other aspect of the experience.  Also, during that time, please do not message me or post anything on my wall or make any comments that would relate to any of those aspects of my jury service.”

The nature and extent of our electronic connections are still evolving, and it is inevitable that instructions will need to evolve right along with them. For now, the best practice seems to be to use clear, detailed, and comprehensive instructions that let sitting jurors know what is and is not allowed.

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Other Posts on Jury Instructions: 

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 Plogstedt, A. (2013). E-Jurors: A View from the Bench. Available at SSRN.

 Image Credit:  Marshall Astor – Food Fetishist, Flickr Creative Commons

August 19, 2013

Cover Your Tracks (When Sneaking a Peek at Your Jurors’ Social Media)

By Dr. Ken Broda-Bahm: 

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As more and more Americans are moving their lives onto social media, the legal world is adapting. Specifically, litigators are coming to realize what a world of information this opens up for voir dire, and to acknowledge as well the responsibilities it creates. The Bar of New York City, for example, noted in a formal opinion on jury research and social media, “Standards of competence and diligence may require doing everything reasonably possible to learn about the jurors who will sit in judgment on a case.” Internet research which “can blur the line between independent, private research and interactive, interpersonal ‘communication,” may still be a required part of the litigator’s standard of practice, but needs to be done ethically. As someone who routinely follows the breadcrumbs of panelists’ online presence, I can tell you that at times the relevant crumbs are few, yet at times, they can be precious. Selecting a jury in the wake of the George Zimmerman verdict, for example, I recently found reactions from several panelists providing an irreplaceable window into their current views on American justice. Those views are likely to be at least as trustworthy as anything the potential juror says in the courtroom. As much as we might expect our own managed profiles and public identities to reflect an ideal, I’ve noted research before showing the information itself tends to be fairly accurate.

Of course, when we talk about a social media analysis of the panel, we are talking about publicly available information, not information that is hidden or limited to a circle of friends. Failing to review those public statements is, to me, tantamount to choosing not to read an op-ed your potential juror has penned for the local newspaper. Still, there is a sometimes unrealistic expectation of privacy among panelists who may think their information is more private than it actually is. Lawyers and those working with them also carry ethical and legal responsibilities to avoid anything that could be seen as contact or influence regarding potential jurors. That, along with the general sense that there is something creepy and NSA-like occurring when one’s electronic footprints are being viewed, provide a good reason to cover your own tracks when doing so. As the sources multiply and the settings become more complicated, however, that can be easier said than done. A recent article by Matt Wetherington in the current issue of Verdict: The Journal of the Georgia Trial Lawyers Association provides an excellent overview of the current social media sources, as well as the practical and ethical concerns. If you don’t know your handle from your tweet, this article provides a very useful starting point. In this post, I draw from that article and build on some of my past advice on social media research in order to provide a simple list of three golden rules to follow so as not to blow your cover. 

Going Beyond Google: Better Data (And Greater Danger)

The starting point for many an online search is to simply type the panelist’s name, plus perhaps a geographic limiter (“+Cleveland”) into the Google window (or Yahoo or Bing), and see what comes up. But there are a couple of problems with that broad-brush approach. Though much, but not all, of a person’s public online activity will be indexed by those search engines, that indexing takes time and information may not appear despite being on a public page. More concerning, however, is the fact that search results are heavily filtered based on your own browsing preferences, so two different people searching the same terms will often see results that are quite different. 

In the Verdict article, Wetherington provides some good advice on using a few sites that specialize in aggregating an individual’s online information (like MyLife and Spokeo). But ultimately, retrieving specific information of interest will often require stepping beyond the big search engines and the aggregators. Searching within the source (e.g., searching for Facebook accounts from within Facebook, and looking for LinkedIn content from within LinkedIn) will get you more hits, but it also exposes you to a few additional risks. 

In past posts, I’ve started my own lists on what is legitimate and what is over the line. In addition, there are also professional standards promulgated recently by the American Society of Trial Consultants. In this post, I want to build off of some of these guidelines for when searches are legitimate and focus on three simple and memorable set of rules for how to do it once you’ve determined it is legitimate. 

The Golden Rules

One, Leave Your I.D. at Home

Probably the greatest challenge is to ensure that you aren’t leaving any kind of calling card showing that you visited. As Wetherington notes, some state bars have held that communication has occurred if a social media webstie simply notifies a target that a party or their agent has viewed their profile. Within Facebook, there is not as yet a means to see who has viewed your profile (though some scam ads claim to offer that ability, Facebook’s official word is that there is no way to do it). Still, it is definitely a good practice to log out of your own Facebook account before looking for your panelists’ public profiles, since that will prevent any accidental clicks from placing a “like” on their page. LinkedIn, however, is a different story, since that company positively markets the ability to see who has looked at your profile. Before reading profiles on LinkedIn, you will need to click on “privacy & settings” under your photo and “select what others see when you’ve viewed their profile” and then pick the option making you “totally anonymous.” That setting is unique to LinkedIn, of course, but it provides a good reminder to check on what your targets will see, and to take reasonable steps to make sure the answer is “nothing.” 

Two, Don’t Make Friends

Notions of user-controlled privacy are starting to sink in among social media users. Based on research cited by Wetherington, more than two-thirds of Facebook users employ privacy settings to protect at least part of their online information. What that means is that you would need to initiate a step in order to join the user’s own select network and see all of the good stuff. But the number one principle is to avoid contact, and that’s a basic component of the rules of professional conduct. During a break at the courthouse, if you saw a group of potential jurors speaking with each other, you wouldn’t sidle up to them to see what they’re saying. Similarly, you cannot ethically send a “friend” or a “join my network” request to a potential juror. Whether the user has ten friends or ten thousand, that effort to join counts as a contact even if there is no other information shared.

Three, Don’t Open Any Closed Doors

An extention on that principle is that there is no getting behind a wall, no matter how flimsy, that the venire member has set up. Hacking a password would be an obvious intrusion, but there are more murky situations: Could one join a sub-group, in LinkedIn for example, that is open to the public in order to take a look at some comments your venire member has made within that group? Beyond the danger that your target would get a “Look Who’s Joined” message calling you out as a suspicious new group member, there is also the potential that this selective membership could be seen as contact or could be viewed as intrusive. As Wetherington notes, courts have erred on the side of greater protection for jurors’ privacy, seeking to avoid anything that would discourage jurors from being willing to serve. Even as some of these scenarios are not yet addressed, the best advice is to stick to a conservative route and respect any effort the panelist has made to comment in a less public forum. 

As much as it focuses on the benefits and precautions of online research, the Wetherington article also concludes that, “The vast majority of information gleaned from these websites will be unhelpful.” The exceptions still make the search worthwhile, but it is never a substitute for effective oral voir dire. On that point, I agree emphatically with the article’s quote from North Carolina trial consultant Charli Morris: “I have, in a handful of cases, found information online that proved critical to our decision during jury selection. But I would trade all the online research in the world for effective attorney-conducted voir dire and cause challenges granted where appropriate.” 

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Other Posts on Social Media as a Source: 

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Wetherington, M. (2013, Summer). Online Research of Potential Jurors: A Survey of Resources and Ethical Boundaries. pp. 16-19. 

(Thanks to Charli Morris for pointing me to this article). 

Image Credit:   sludgegulper, Flickr Creative Commons

March 14, 2013

Account for Social Media Distortion

By Dr. Ken Broda-Bahm: 

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The way we create, locate, and measure public opinion is changing, and fast. It used to be that we treated the body public as a passive audience waiting to be canvased, surveyed, or focus-grouped. Today, however, people in all demographics are active in public and semipublic internet spaces creating, sharing, and liking their way to an electronic body of evidence that’s unparalleled in history. The existence and continued growth of that body is starting to affect the way we research, including in the litigation world. In what I called the “best trial idea of 2011,” I previously discussed the concept of “social listening.” Originally a technique used by market research firms in order to keep track of online statements about a product, a company, or an issue, social listening stands to become a tool promoted and used by some consultants to monitor and react to large-scale discussions about high profile court battles like the Casey Anthony trial.[1]

Of course, at least some of that promotion may be jumping the gun a bit. But still, when there is a pool of searchable information out there, it is only inevitable that social scientists will be drawn to it. And what social scientists use, lawyers, litigation consultants, and even the jurors themselves are bound to use as well. But even as we cautiously approach this new source of data, we need to be aware of a distorting effect. If social media is “a mirror up to society,” it is more like a funhouse mirror, magnifying some areas and diminishing others. As interactive Web 2.0 features are increasingly used as a guide to public opinion, this post looks at some new research on the extent of social media’s distortion and identifies a few practical places where we should account for that distortion. 

New Research: Social Media Views Society Through a Glass, Darkly

Twitter has a lot of advantages as a data source: It is widespread, decentralized, immediate, searchable, and free. But despite all of that, and some earlier research showing some level of correspondence to public opinion, it isn’t quite the perfect data source. Earlier this month, Pew Research released the conclusions of a one-year study comparing the results of national polls to the content and tone of tweets in response to major news events. Looking at reactions to the presidential election, the debates, and to major speeches by the candidates, Pew found that the tweet content was not a reliable indication of public opinion. And worse, the skew itself was not predictable because sometimes the reaction from the “Twitterverse” was more liberal than measured public opinion, and at other times it was more conservative. On each end of the scale, the differences can be stark. Pew reports that after the first presidential debate (the one we’ve previously discussed as somewhat of a nonverbal disaster for the President), 59 percent of those on Twitter felt the President did a better job, while in sampled public opinion data only 20 percent felt that way. Or in the President’s second inaugural (right, that first debate wasn’t fatal), 13 percent of comments on Twitter were positive, while the survey data showed 48 percent support. 

Pew has also shown that this failure to track public opinion isn’t unique to Twitter. Factoring in blogging and Facebook comments, Pew showed a similar wide gulf between the hot and hip world of social media, and the traditional and stodgy (yet mostly accurate) world of public opinion research.

Of course, it isn’t too much of a surprise that there would be these differences. Social media users are not yet a random cross section of the populations, and there are still rather extreme differences between individuals regarding degree and purpose of participation. It is also possible to say that both public opinion data and social media activity are measuring something, just not the same thing. A spike in tweets or Facebook comments, for example, could easily be seen as a measure not necessarily of attitude content, but of attitude intensity. After all, answering a survey is a passive act, but choosing to compose and send a message is active and behavioral, and each mode has its advantages. 

My position is that litigators and trial consultants should still be moving toward the cautious analysis of social media content, as long as they remain aware of the distortions in a few settings. 

Account for Distortion in High Profile Cases

Even when the social media world has a laser-like focus on a particular case, that audience is not a proxy for your jury, but neither is public opinion data. The Casey Anthony trial is probably the best example of that. With social media virulently against the accused, and public opinion nearly unanimous in condemnation, a jury still found insufficient evidence to convict. That means that neither should be used as a tool of overall case assessment, nor as a more specific measure of whether particular arguments, witnesses, or pieces of evidence are working or not. At the same time, the tone and content of online comments could still serve a heuristic function. As a working tool for coming up with a large number of possible themes and reactions, it can serve the role of a large and unruly focus group. Subject to the same necessary lack of representativeness, it can still be a good sounding board to spark ideas. 

Account for Distortion All Cases Using Social Listening

Though the research and our understanding of what actually happened in the Casey Anthony trial [1] has improved since its writing, my earlier post on the role of social listening in a variety of cases still has some relevance. Using the tools described in that post by New York litigation and social media analytics consultant Christine Martin, it still makes sense to look at the ways a company, party, or issue is trending in social media. At the same time, the Pew Research data give new reasons to be cautious of the representativeness of those views. It is worthwhile to see this activity as a source of ideas, and a behavioral indication of intensity of views, but not as a reliable mirror. 

Account for Distortion in Jurors’ Own Views of Public Opinion

It isn’t just researchers who use social media in order to assess public opinion. The public does it as well. We no longer live in a world where most everyone in town reads the same newspaper or gets their knowledge from the same three television channels. Increasingly, people learn about the world and form opinions not through common sources, but through their network. A group of friends and contacts, like the one depicted in the “FriendCircle” above, is a unique and highly personalized source of information, and being within that circle can create a kind of “filter bubble” influencing what we take to be normal or common. In the current gun control discussion, for example, it is likely that active social media users would see either stricter gun control or unfettered gun rights as incredibly popular, depending on who their friends are. In both cases, the perception of public opinion is distorted by the echoes within one’s own personal network. These perceptions of where attitudes lie on a number of common issues — corporations, the government, personal responsibility, privacy, etc. —  can matter in a variety of cases. So as always, the best advice for knowing how your panelists see the world is to avoid assumptions and ask individually targeted questions. 

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[1] Since the publication of the Palm Beach Post article about the role of social listening in the Casey Anthony trial, there has been reason to doubt how central the strategy was to the Defense. During a presentation at the American Society of Trial Consultants’ annual convention in 2012, Anthony’s attorney Jose Baez, told attendees that it was not true that the team was tracking or using social media views in the manner described in the article. 

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Other Posts on Social Media:

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Image Credit: Miss_Rogue, Flickr Creative Commons (Facebook ‘Friendwheel’)

November 29, 2012

Be Generous With Your Expertise (Even When the Meter’s Not Running): Another Lesson from the ABA Journal’s Blawg 100

By Dr. Ken Broda-Bahm: 

Share Icon-02They say that attraction is better than promotion, and we’re pleased this blog has been attractive. We’re honored to be in the fine company of the ABA Journal Blawg 100 for a second year. If you like what you read here, feel free to give us another bump by registering and voting at the link above in the “Trial Practice” category. But – as you might expect – there is more to it than self-congratulations. Just as I noted on the occasion of our first Blawg 100 honors last year, there is a larger point to be made, and it bears on the work of litigators. In this case, the larger point boils down to one simple word: Share. Share your knowledge, share your experience, and share your skills. Generously. Yes, we are in the business of selling all three, but the reality is that we’re also entering what can be called a “new knowledge economy” where value is something that often moves freely in an open creative commons, and is not simply bartered away to paying customers.

In other words, the lesson for litigators I’ve learned in writing this blog is a lesson for how lawyers should promote, or more accurately, attract. That lesson is to be generous with your time and your expertise. Of course, lawyers need to be careful and clear about when representation is and isn’t created. But as lawyers and legal consultants, we’re in the business of getting potential clients to trust us before they hire us. Reputation, past work, or a longstanding relationship – those are all great routes to trust. But for those who we are just meeting, how do we get them to trust? A new essay in Boro Zivkovic’ blog post for Scientific American, “Nate Silver and the Ascendance of Expertise” provides some timely wisdom on this point. “Expertise engenders trust,” according to this science blogging pioneer, and as we’re becoming fed up with glib pundits and bloviators, “there is a hunger out there for expertise.” Expertise is something that you have. So the question for our post today is, “How should you share it.” 

Now, you’re going to expect me to say, “Share it by writing a blog!” As legal blog-king Kevin O’Keefe would say, it is all there in the title of his blog, “Real Lawyers Have Blogs.” But with over 1.1 million lawyers in the country, and around 3,600 blogs registered with ABA Journal, there must be many ‘unreal’ lawyers, or it may be that blogging is not for everyone. I’d lean toward the latter. Buying into the social media gold rush isn’t mandatory and many lawyers will be better off pointing energies in other directions.

But if, on the other hand, you have both the time and the temperament (Note: you need some of the former, not as much as you’d think, and much more of the latter), then a targeted blog may be a great way to connect yourself to your audience. Blogging has worked for me because I like the structure, continued engagement with interesting topics, pithy news nuggets drawn from current events, new research, and concrete recommendations for trial lawyers. No, it doesn’t cause clients to beat a path to your door, but it does serve as a great calling card and an effective way to meet those who might benefit from your perspective. But more than that, I just see it as a way of doing what I do — a way, with all due humility, of being a public expert in this one area. 

So whether you blog or whether you put your knowledge out into the world in other ways, here are a couple of reminders that are brought to mind by Mr. Zivkovic’s piece and by the ABA Journal honor. 

When You Write, Go For Substance

In the history of blogging (a relatively short history, I know), we may have started out thinking of blogging as a handy and easy alternative to publishing: a place to share short snippets of text, or a home for a kind of online diary. But today, it seems like we’ve doubled back on that original informality, and with many – not all, what makes the blogs worth reading is what makes them the most like articles. For me, that has meant: 

  • Not just sharing, but writing with a clear thesis and structure
  • Not just my thoughts, but posts based on prior research, commentary, or experience
  • Not just observations, but clear recommendations with each post
  • Not trifling, but not terribly long either: long enough to make a point, support it, and tease out a few implications

In short, I try to write “article-style” blog posts. Bora Zivkovic notes that he has also seen the lines between blogs and articles are getting fuzzier, and that is a good thing in some ways. Referring to the posts that tend to work, he captures exactly what I aim for, and what I think lawyers and other experts should generally aim for in their writing: 

Such pieces are not seen as entertainment, but as resources – something to be saved, bookmarked and shared with friends. Such pieces keep getting re-discovered and re-shared for years after initial publication. They provide value that a one-hit wonder, entertaining piece does not. They provide value that standard, short, news pieces do not – they provide context and detail and quality of explanation that comes from expertise, something that a 400-word piece cannot possibly contain, as there is not enough space for it. Longform writing works.

When You Talk, Get Beyond Yourself and Your Services 

A friend of mine recently had trouble with a home furnace installation, and one of the lawyers in my firm gave him an hour of time with the full understanding that he wasn’t the right lawyer for the case. But he could and did help my friend understand his needs and choose the right lawyer. It led to a referral, and it is of course something that happens countless times in firms like my own, and other firms across the country every day. The lawyer shared his expertise because he had expertise to share, not because it would necessarily lead to business. That is the spirit that makes lawyers professionals, and it is also the spirit that should define our goals when we are presenting our public selves.

In my role, I see a lot of speeches given to legal audiences. The best ones, from an audience’s perspective, are always those that are able to convey directly useful information that transcends the speaker’s need to develop business. A good example is a presentation that my colleague, Dr. Shelley Spiecker, is delivering next month. She is speaking on “Women at Work: Making Communication Work for You” as a West LegalEdcenter live webinar on December 11th.* Shelley is sharing that expertise because she has the expertise to share. It is a way of being public expert, and that is something that the profession, the realities of the new knowledge economy, as well as the practical needs of networking call for us to do. 

Let me make one final, and more prosaic point: I write this blog on Typepad platform. I know, I know, all the cool kids are on WordPress now, but I know (mostly) how to work the controls on Typepad and that is a big advantage. But I also like their slogan:  “Share your passions with the world.” That, I think, is what has been the secret to this blog. If it were an assignment, or a chore, or worse yet, a “business development initiative,” I think it would be hard for me to think of and write useful content twice a week. But instead, it’s a passion. That’s what’s made it easy, and that is why I do it. 

Oh, and feel free to share this post. 

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Last Year’s Blawg 100 Post: 

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*Note: If you are a regular reader and you would like to attend Dr. Spiecker’s seminar or view it later, contact us because we can probably get you a promo code. 

Image Credit: Created by Nick Bouck, Persuasion Strategies…for free. 

May 10, 2012

Vet Your Public Persona

By Dr. Ken Broda-Bahm: 

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It will not go down as one of the doctor’s smartest Facebook updates. Returning to work at Wales General Hospital last December, Dr. Brendan O’Riordan added a note on his status: “Back and causing chaos,” he wrote, “Been in theatre this week slaughtering the innocent.” That stab at humor is not so smooth for a surgeon in any context, but the statement was made all the more awkward by subsequent events: Just a year later, Dr. O’Riordan would be the subject of a hospital inquiry for allegedly causing the death of a patient during surgery. Of course, the Facebook post was found and published in the London Daily Mail. Unlike patients and professional reputations, content on the internet lives forever.

Most witnesses and parties are probably able to avoid that kind of careless notoriety, but the number of targets and the nature of public information itself has changed dramatically in just the last few years. With close to 800 million Facebook users worldwide, the online community now includes parties, witnesses, attorneys, judges, jurors, arbitrators, and mediators. And beyond Facebook, there is also Twitter, LinkedIn, Flickr, YouTube, SocialCam – and it seems to me – about a dozen hot new trends every day. Put all of these sources together and you have, for most of us, a “public persona” that is potentially available to those who wish us less than the best in litigation. This post takes a look at some research and experience on the ways this persona can influence litigation, and ends with some concrete recommendations on keeping your public persona in check. 

An Ever-Expanding Playing Field

It seems likely that parties close to the litigation process have always shared too much. What has changed is that much of that oversharing is now easily available. It is as if millions of barbershop and back porch conversations are being transcribed and placed on a worldwide instant distribution network. The traditional playing field has expanded as it becomes easier to access the lives of parties, experts, and adversaries that you once knew only through the formal process of discovery. 

Recently, for example, I was working for a doctor who had been sued for malpractice. When I first took in the case, I did something that her own attorneys had not yet thought to do: I Googled her name. What came up wasn’t nearly as bad as the comments from the Welsh doctor, but it was content that could still matter in trial: A fully public Facebook profile that showed the doctor with her happy family vacationing in some of the most enviable spots all over the world. That’s not uncommon content, but imagine the juror who sets aside an instruction and lets his fingers wander the keyboard just a bit: The vacations looked pretty lavish, but more than that, they included a fully-intact family, which the plaintiffs no longer had. No, that probably wouldn’t turn the case, and yes, most jurors would follow the instructions and not look at it. But why take the chance, when it is easy enough to make your profile visible to friends only?

Of course, it has become a pretty constant refrain to urge attention to online privacy. Despite that, the anecdotes of unwise disclosures continue to come in. One reason is that many people don’t live with the constant expectation of litigation. Another reason is that we tend to have false expectations of privacy that apply to our online activities. When we are at our computers, it can feel very solitary, even though the world is just a click away. 

And it does turn out that negative information in your public persona matters. A recent study (Weathington & Bechtel, 2012) compared job applicants evaluated on the basis of resumes only, to job applicants with resumes plus visible social networking site profiles (which in this case pointed to the applicant’s gambling and alcohol consumption). No surprises here, the negative social media information led to significantly lower evaluations.  

Limit Your Exposure

Research, as well as social media experience, tends to confirm the obvious: Stupid disclosures can lead to harmful results. But even with this truism widely acknowledged, litigators should still take an extra moment to make sure that you and your witnesses are not hurting yourselves in the social media world. Three bits of advice.  

1. Think Before You Share. This should be self-evident, but it can still escape notice by parties. When I’ve used examples like the surgeon referred to in the introduction, the response is often some version of “really, they can look at that?” Yes, they can. It may not be admissible, but that won’t necessarily stop a juror or an adversary from making a judgment based on what they learn. In the case of the surgeon, the plaintiffs’ family made a public statement about the Facebook post. Make sure your witnesses and everyone else near the case knows to keep an eye on their public information. It is also a wise idea for attorneys to run a routine social media check on their own witnesses, so if the opposing trial team or the jury goes looking, you know what they’ll find.

2. Use All Available Privacy Settings. Social media sites are in the information business. They make money, not by charging admission, but by bundling personal information together and selling that information to those who want to market or advertise based on it. Given that goal, most social media sites have an interest in members maximizing rather than minimizing their exposure. So, “don’t rely on default settings” is a firm rule. The sites don’t always make it easy, but they do generally include ways to limit who sees how much of your information. There are experts who know much more than I about how to safeguard your online persona (like here, here and here). Take the time to understand that information. 

3. But Don’t Change Anything Covered By Discovery. Of course, all this good advice can be taken too far. Last year, a Virginia judge sanctioned a lawyer and his client $722,000 for removing Facebook evidence. The client – a plaintiff in a wrongful death suit who won $10 million over the death of his wife – removed a photo of himself holding a beer and wearing a shirt that read “I [heart] hot moms!” The smoking gun, apparently, was an email from the lawyer’s assistant that read, “We do not want blow-ups of other pics at trial, so please, please clean up your Facebook and MySpace.” So my advice in this post, as in all posts, applies only where it doesn’t make a judge angry. 

Thinking back to the Enron case, those who followed the trial might remember that Jeff Skillings had his jury consultant outed while he was on the stand, with the prosecutor then turning to that consultant’s public online writings, pulling them up on the screen for the jurors to see. There is a point there for me: As a consultant who is also a blogger, I’m acutely aware that as I write I’m contributing to a public persona. That isn’t a bad thing, it just means that I never post anything that I wouldn’t want to be broadcast far and wide to friends and enemies alike. That isn’t a chilling effect.The other way to look at it? Quality control! 

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Other Posts on Social Media: 

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Weathington, B.L., & Bechtel, A.R. (2012). Alternative Sources of Information and the Selection Decision Making Process. Institute of Behavioral and Applied Management: http://www.ibam.com/pubs/jbam/articles/vol13/no2/Weathington_Article_2.pdf

Image Credit: redtimmy, Flickr Creative Commons

January 2, 2012

Apply “Social Listening” To Your Case

As we turn the page on a new year, it is a good time to look back on the trials of 2011. The year had its share of high profile cases from the ‘second times a charm’ prosecution of Rod Blagojevich, to the conviction of Dr. Conrad Murray, and even the grand jury phases of the Jerry Sandusky trial. In these cases and others, the year held many great trial moments, but as far as the trial moment with biggest impact on litigation generally, the distinction goes to the Casey Anthony case, not for its deeply unpopular verdict, but for methods applied in the defense, and what these methods can mean for your trial.

Consultants working for the Casey Anthony defense applied a strategy called “social listening” to this uniquely public trial, analyzing more than 40,000 posts, tweets, and other social media comments on the case in order to, in effect, conduct a daily national focus group on the trial as it progressed. While few, if any, cases will ever reach that fever-pitch of commentary, the technique of systematically analyzing content from public sources can apply to trials across the spectrum, providing another sounding board and tool for assessing your case. In the Anthony trial, the social media world responded daily, and with specificity, to the evidence and witnesses of the trial itself. That will only happen with high profile trials, but in other cases, the blogs, tweets, and comments ricocheting around the internet will still bear on issues that matter to your case. This post takes a look at what social listening means, and how it can be used in cases large and small.

By Dr. Ken Broda-Bahm:

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As we turn the page on a new year, it is a good time to look back on the trials of 2011.  The year had its share of high profile cases from the ‘second times a charm’ prosecution of Rod Blagojevich, to the conviction of Dr. Conrad Murray, and even the grand jury phases of the Jerry Sandusky trial.  In these cases and others, the year held many great trial moments, but as far as the trial moment with biggest impact on litigation generally, the distinction goes to the Casey Anthony case, not for its deeply unpopular verdict, but for methods applied in the defense, and what these methods can mean for your trial. 

Consultants working for the Casey Anthony defense applied a strategy called “social listening” to this uniquely public trial, analyzing more than 40,000 posts, tweets, and other social media comments on the case in order to, in effect, conduct a daily national focus group on the trial as it progressed.  While few, if any, cases will ever reach that fever-pitch of commentary, the technique of systematically analyzing content from public sources can apply to trials across the spectrum, providing another sounding board and tool for assessing your case.  In the Anthony trial, the social media world responded daily, and with specificity, to the evidence and witnesses of the trial itself.  That will only happen with high profile trials, but in other cases, the blogs, tweets, and comments ricocheting around the internet will still bear on issues that matter to your case.  This post takes a look at what social listening means, and how it can be used in cases large and small. 

What Does Social Listening Mean to Litigators?

Social media expertise, and social listening in particular, is evolving as a specialization with direct relevance to litigation. While the phrase “social listening” most often refers to a company’s practice of monitoring what is being said about its products or services on social media sites or review sites like Amazon, similar needs and techniques apply to litigation as well.  I asked a specialist:  Christine Martin, Vice President for Strategic Communications and Social Media with FTI Consulting.  She notes, “Social-monitoring platforms can track thousands of blogs, forums, and social-networking channels as well as traditional media, all in close-to-real-time.”  But in the same way that asking your friends what they think of your case isn’t a substitute for a systematic mock trial, relying on your household search engine isn’t a substitute for professional social listening.   

“When you are trying to listen to a large volume of internet communications for a legal case,” Martin says, “nothing can take the place of a qualified analyst with legal, social science, and search-engine expertise who is fluent in the newest social media monitoring technology available.”  Some of this new monitoring technology includes not only free sites, but also specialized programs such as Radian6, Sysomos, and Meltwater

We don’t know what specific approaches were applied by the Anthony defense team, and we do know that social listening was not invented for the Anthony trial.  But based on the scale of review, the depth of public commentary, and the public awareness, the strategy of social listening in the Anthony case was novel.  According to Florida A&M law professor Shiv Persaud, reported in the Palm Beach Post, “This is the first time I have heard of this kind of consulting for a trial and it’s incredible….  We could benefit from a new type of tool we didn’t have before.”  The consultant most responsible, Amy Singer, agrees.  “I’ve spent 32 years listening to people’s reactions to trial stimulus, but it’s never been anything like this,” she said. “This whole case was driven by social media. We really tapped into people’s minds.”

But is it Valid? 

That invites the question of whether we really are tapping into people’s minds.  Is social media commentary a reliable gauge on public opinion?  It obviously isn’t an infallible mirror of opinion within either your specific venue or your actual jury, but based on current evidence, it is more reliable than you might think.  A study coming out of Carnegie Mellon University (O’Connor et al., 2010) compared polling with twitter message content on issues of consumer confidence and political opinion and found striking levels of correspondence, in several cases with correlations as high as 80%.  The positive or negative content of the tweets, as measured with word-counting software, tended to match the opinions measured in polls.  While the research focuses on just one social media source, Twitter, it isn’t too great a stretch to believe that similar levels of correspondence apply to other on-line sources as well.  The researchers conclude that in some contexts, mining publicly available data could be “a faster and less expensive alternative to traditional polls.”

How Should Litigators Put Social Listening Into Practice?

1.  Get Beyond Google.  Yes, we all know that we can get pages and pages of hits off of most common search terms in Google, and many of us also know that it is possible to do advanced searches allowing you to get a little more Boolean (and, or, not), and to search by date.  But even in the hands of strategic searchers, Google and comparable search engines are still just practical “finders” that aren’t adapted to social listening.  As Christine Martin writes, “Google is a wonderful tool, but it is simply not suited to the kind of large-scale monitoring tasks that are needed when searching public sentiment about an on-going jury trial or legal case.  Using Google alone to do the kind of social media analysis and opinion mining needed for a large case would be overly time consuming and very likely miss key information.”  For example, just Googling “Casey Anthony” returns more than sixty million hits.

2.  Don’t Assume that Social Media Exactly Reflects Your Target Audience.  Even in light of studies, such as the one cited above, showing a high level of correspondence between public opinion and social media commentary, it is important to remember that no on-line analysis should be treated as a facsimile of opinions within your venue, much less your actual jury.  There is probably no better example of that than the Casey Anthony case itself.  Based on the shock and derision accompanying the verdict, it is clear that the jury was having a very different experience of the case than that experienced by much of the rest of the world.  The same is likely to be true in any case.  Without aiming to predict your actual jury’s reaction, the public commentary can provide a spectrum of possible responses, and serve as a sounding board for the case. 

3.  Pay More Attention to Leaders and Influencers.  One interesting tidbit about the O’Connor et al. study is that, in addition to finding that on-line content had a high correlation with public opinion measured in the polls, the researchers also found that social media comments could actually predict future movements in the polls.  Now, why would that be the case?  The likely answer is because the social media analysis, unlike the polls, are looking at the opinion leaders and “influencers.”  Instead of assuming that all opinions are equal, as a poll inevitably does, a social listening analysis is focusing on the “squeakiest wheels” that have an influence on the views of a much larger number.  That doesn’t mean that every on-line comment, however, is influential.  Not all comments have equal weight.  According to Christine Martin, “A good analyst knows how to use the analytics provided to determine influence and authority of individual postings,  thereby identifying the strength and power of opinion to disseminate, persuade and reflect public sentiment.”

As technology and our use of it has evolved, it was inevitable that at some point a trial would emerge as the “social media trial.”  The fact that the Casey Anthony defense, with its emotional content and deeply unpopular verdict, was that case should not reflect on the technique itself.  There has never been anything intrusive or improper about using public commentary to get a handle on the issues that matter to your case.  “We now have better listening technology and unprecedented access to the biggest focus group and/or shadow juries on-line,” Christine Martin writes, yet “taking the lazy path of depending on merely Google search and ‘news alerts’ is no longer an viable option in the data heavy environment we are now living in.” 

With help from a specialist, every litigator should consider social listening as one of the tools of case assessment and strategy development, particularly when the stakes are high and the public attitudes are strong, in 2012 and beyond.  

And speaking of 2012, I personally can’t wait for the John Edwards trial

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Other Posts on Social Media:

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ResearchBlogging.org O’Connor, Brendan, Balasubramanyan, Ramnath, Routledge, Bryan R., & Smith, Noah A. (2010). From Tweets to Polls: Linking Text Sentiment to Public Opinion Time Series Tepper School of Business (Paper 559)

 

Image Credit (edited):  ElectronicFrontierFoundation, Flickr Creative Commons

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