I’ve done it for years. When my law firm takes on a new case, I Google opposing parties and scour their websites. I Google our client. I look at what they post — publicly — on Facebook. I check for news accounts of the incident involved. I’ve discovered surprising things that weren’t in the files. No smoking guns, but useful information that helps me understand who and what we’re dealing with. I read the comments on news accounts to get a sense of the public perception, true or false. And if a case goes to trial, we do the same for potential jurors, to get a sense of who they are — and keep an eye out for any violations of the judge’s admonitions against talking about the case publicly during trial. Trials are expensive, emotional, and time-consuming — and a juror’s misconduct can torch years of effort.
Never, ever, though, would I go beyond the public wall to “friend” or “follow” a witness or potential juror. Like many other lawyers, I think it’s part of my obligation to my client to look at the information a person shares publicly, but to pry into private communications or to “friend” a witness on FB — even if they know, or should know, who we are — would clearly be an ethical violation.
The American Bar Association has now given a green light to the practice of looking at public information, such as corporate or individual websites, or public Facebook profiles. Whether lawyers can hire firms to do the research, essentially profiling a juror from their social media posts, is still an open question. Individual states and courts may, of course, approve or sanction the practice, but the ABA opinion is good guidance.
How will your characters use this tool — or break the rules?