By Dr. Ken Broda-Bahm:
A classic case of pretrial publicity is currently playing out in Steubenville, Ohio. After members of the hacker's group called "Anonymous," posted a photo and video linking two high school football players to the rape of a teenage girl and pointing toward an official effort to limit the scope of the scandal to protect the football team, the story has saturated local and national media. Scheduled to be in trial next month, their attorney has claimed "a right to a fair trial for these young men has been hijacked." This is the kind of scenario we most readily think of when we consider the effects of pretrial media: Wall-to-wall coverage of a criminal case leads to such a high level of knowledge, or perceived knowledge, that it becomes impossible to find an open-minded jury. We're less used to thinking about this media effect in a civil law context, especially in those mid- to smaller-sized cases that make for boring news stories.
But there is a broader effect at work, and a way that media coverage matters to a wide spectrum of civil trials as well. If your future jurors are exposed to related news or similar stories, they're likely to view your case in the context of that information. While most of the research on pretrial publicity has focused on criminal cases, some (e.g., Bornstein et al., 2002; Robbennolt & Studebaker, 2003) have shown that its effects can be as acute, or even more so in a civil trial context. A current study reported in the November edition of The Jury Expert (Platania & Crawford, 2012) looks at the influence of coverage of similar cases on products liability verdicts, finding that exposure can have a substantial influence. This post takes a look at that study and draws out some general suggestions for civil litigators looking to keep an eye on the media climate.