Saturday, May 16, 2009

Defining Your Case Through News Article Comments

Every trial practice class we take tells us that we have to devise a "story" of our case. The story is what we teach the jury (or judge) as we try the case. Each witness and exhibit builds our story to lead the jury to believe in its truth and, ultimately, to rule on our favor.

But how do we know that our story will resonate with a jury? That's always been more of an art than a science. We tell the story to staff members, other lawyers - anyone who will listen. If we have a client with a little money we might do a focus group. If we're lucky enough to have a client with a lot of money (and an important case) we might even hire a jury consultant to help us craft both the story and to develop a profile of the "ideal" juror. Still, we never know until the verdict comes back.

Here's another thing to add to our toolbox - one that won't cost your client a cent. Most newspapers and TV stations are now posting their articles online. And most of the online web sites permit readers to post comments telling what they think of the story.

If an article is written about your case, pay close attention to the readers' comments. They come from the general public - the same general public that makes up your jury pool. I am undecided about the ethics of posting comments of your own or otherwise interacting with the readers - I lean toward it being unethical but haven't researched the issue - but there is no harm in looking at what people say and then crafting your ultimate case presentation accordingly.

In fact, I'll go out on a limb and say that, sometime in the next ten years, we will see an attorney somewhere held liable in malpractice for presenting a case without taking readers' comments into account.



VisionnaryMentors said...

Reviewing articles and the comments of articles can be viewed as pre-testing. If researchers (lawyers) provide their comments to any case postings, then researchers can be viewed as leading the readers with their comments. Thus, 2 postings (on the same case) might be featured, whereby the researcher include their comments and excludes views on the other posting. Researchers might can determine when saturation (based on comments from the general public) has been reached and then draw conclusions (craft preliminary presentation) and compare the results (craft final presentation). Will presenting findings based on this type of methodology be considered unethical? I would say no, when the lawyers cite (present the argument) whereby the data were obtained.

Tim Hatton said...

But what if you are using the information simply as background to help you craft the "theory" of your case? In such a situation, you won't necessarily be disclosing to anyone what you are doing. Now, I don't think that's unethical (you'd disclose if they asked). What I think may cross that line is when you interact with the readers, via the comments system, either to mold public opinion or to obtain more information.

We will see this type of thing play out as more attorneys begin to become comfortable with online systems.