By: Ari B. Kirshner, Personal Injury Practice Group
Over the past year it seems as though the writers for ‘The Good Wife’ have been endowed with prophetic vision in scripting the show. Last week’s episode involved protagonist, Alicia Florrick, attempting to find evidence that would allow a sympathetic judge to declare a mistrial in a case that found her client guilty of murder. Each time she reappeared before the judge with more evidence - be it jury misconduct or failure to disclose personal information – the judge indicated that the proof they had was insufficient for him to declare the mistrial. Ultimately, in the final moments of the show [SPOILER ALERT], superstar investigator Kalinda Sharma discovered that the Judge had “friended” one of the jurors on Facebook. While the “friending” was done through the judge’s campaign page and, as he so honestly put it, every “friend” was a possible vote, he nonetheless declared a mistrial on the grounds of inappropriate conduct between himself and the juror, thus giving the defendant another shot at justice.
This same situation played itself out this week in a Will County courtroom with the opposite result. Kelly Klein, an in-home day care operator, was charged with battery of a child after a 7-month-old boy she was watching suffered a head injury. She argued the boy bumped his head while playing on a tile floor; she was convicted of aggravated battery in a bench trial before Judge Rozak. In an effort to have the conviction thrown out, Klein’s attorney argued that Rozak’s daughter and son were Facebook friends of the injured boy’s uncle and aunt. Because the uncle testified at trial, Klein’s attorney argued that the relationships were important since the uncle’s credibility was at issue.
These arguments were rejected by a separate Will County Judge (Schoenstedt) who held a hearing on the issue. Schoenstedt found that imposing a requirement on judges to check the hundreds of Facebook friends they, or their family members, may have is an impossible standard to impose. Furthermore, an affidavit presented by Judge Rozak stated that “Since my children are adults and living on their own, I no longer vet their ‘friends’ and do not utilize their electronic networking sites.” While Klein’s attorney argued this was an ‘ostrich-head in the sand’ position, reviewing judge Schoenstedt still found there was no appearance of impropriety. Interestingly, Judge Rozak’s children changed their settings and privatized their Facebook pages after the whole hoopla began.
While time will tell if Klein’s attorney will appeal this specific issue, what is clear is that data on Facebook, Twitter, LinkedIn and other social media sites is entering courtrooms full steam ahead. I recall not too long ago a friend posting a post-accident photo on Facebook with the caption “Whoops! Missed the stop sign there.” As a Plaintiff’s personal injury attorney, I regularly look up defendant’s Facebook pages and anything Google can find on them. I’ve also been told by my family-law colleagues that Facebook often contains a wealth of information that opposing attorneys, or adverse clients, wouldn’t want disclosed. (Rule of thumb- If you don’t want your ex’s attorney to find out, don’t put it on the internet.) I suggest you give your electronic profile a look-over and decide if your posts, thoughts and photographs really belong to the ‘public’ or should remain ‘private.’ Don’t forget, once it’s out there attorneys can find it if they really want to – and don’t say you weren’t warned.