When Technology Enters the Courtroom

In the recent appeal of a jury verdict in a medical malpractice case, the unsuccessful plaintiff challenged a judge's refusal to allow his counsel to conduct Internet searches of potential jurors during voir dire. The appeal asked the question: Should the court be permitted to limit the use of technology because it allows a tech-savvy attorney to check juror backgrounds while opposing counsel does not?

Background

The case, heard in the Superior Court of New Jersey, Appellate Division, is Carino v. Muenzen, 2010 WL 3448071 (N.J.SuperA.D., 8/30/10). It was originally brought as a medical malpractice suit by plaintiff Joseph Carino, individually and as the executor of the Estate of his wife Grace Carino, against Christopher Muenzen, M.D. Grace Carino had visited Dr. Muezen's office for an examination after she experienced two headache episodes. Because of her symptoms, the doctor suspected Carino was experiencing migraines, rather than a subarachnoid hemorrhage, though he did not completely rule out such a possibility. According to his testimony, the doctor did not tell Carino about this second possibility because it was not his practice to unduly alarm patients unless he was certain he was dealing with a particular ailment, or unless the next procedure would be to deal with that ailment. Still, in order to be sure (because a subarachnoid hemorrhage can be fatal), Dr. Muenzen sent Carino for a CAT-Scan, which came back negative. With this information in hand, along with his examination of the patient and his knowledge of her pain history, the doctor concluded that she was not suffering from a subarachnoid hemorrhage. He did not inform Carino that CAT-Scans are not 100% effective in diagnosing a subarachnoid hemorrhage. She underwent further tests, which also came back negative for subarachnoid hemorrhage. A week later, Carino collapsed, falling to the ground and hitting her head. She was then diagnosed with a subarachnoid hemorrhage and a subdural hematoma. She died shortly thereafter.

Expert testimony at trial indicated both of Carino's bleeding conditions could have resulted from her fall, although the subarachnoid hemorrhage could also have developed without head trauma. A unanimous jury returned a verdict of no cause of action, finding that Dr. Muenzen had not deviated from the standard of care. The trial judge therefore entered an order of dismissal.

Is It OK to Google?

The plaintiff appealed on several grounds, one of which concerned his attorney's use of technology in the courtroom. During jury selection, the plaintiff's counsel began conducting Internet searches of prospective jurors on his laptop computer. Defense counsel objected and the following exchange took place:

THE COURT: Are you Googling these [potential jurors]?

[PLAINTIFF'S COUNSEL]: Your Honor, there's no code law that says I'm not allowed to do that ' in any courtroom '

THE COURT: Is that what you're doing?

[PLAINTIFF'S COUNSEL]: I'm getting information on jurors ' we've done it all the time, everyone does it. It's not unusual. It's not. There's no rule, no case or any suggestion in any case that says '

THE COURT: No, no, here is the rule. The rule is it's my courtroom and I control it.

[PLAINTIFF'S COUNSEL]: I understand.

THE COURT: I believe in a fair and even playing field. I believe that everyone should have an equal opportunity. Now, with that said there was no advance indication that you would be using it. The only reason you're doing that is because we happen to have a [Wi-Fi] connection in this courtroom at this point which allows you to have wireless Internet access.

[PLAINTIFF'S COUNSEL]: Correct, Judge.

THE COURT: And that is fine provided there was a notice. There is no notice. Therefore, you have an inherent advantage regarding the jury selection process, which I don't particularly feel is appropriate. So, therefore, my ruling is close the laptop for the jury selection process. You want to- I can't control what goes on outside of this courtroom, but I can control what goes on inside the courtroom.

The Appeal

On appeal, the plaintiff argued that he lost “the opportunity to learn about potential jurors ' one of the most fundamental rights of litigation.”

The appellate court noted that, in New Jersey, judges are given broad discretion in conducting voir dire proceedings. Horn v. Village Supermarkets Inc., 260 N.J.Super. 165 (App.Div. 1992), certif. denied, 133 N.J. 435 (1993). That authority is not unlimited however, as judges must act responsibly and within constitutional bounds. Ryslik v. Krass, 279 N.J.Super. 293 (App.Div. 1995).

In this case, the court rules said nothing about use of the Internet during voir dire. In fact, in April 2008, when the trial court administrator announced through a press release that wireless Internet access would thenceforth be available in the courthouse, no mention was made of any limitations. Additionally, the release said wi-fi in the courthouse would “maximize productivity for attorneys.” Neither in that press release, nor in any other cited place, was there any discussion of a requirement that attorneys notify the court or opposing counsel when they would be using the Internet.

With this background in mind, the appellate court concluded: “Despite the deference we normally show a judge's discretion in controlling the courtroom, we are constrained in this case to conclude that the judge acted unreasonably in preventing use of the Internet by Joseph's counsel. There was no suggestion that counsel's use of the computer was in any way disruptive. That he had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of 'fairness' or maintaining 'a level playing field.' The 'playing field' was, in fact, already 'level' because Internet access was open to both counsel, even if only one of them chose to utilize it.”

Despite siding with the plaintiff on this issue, the appellate court did not reverse on this basis, as the plaintiff could show no prejudice resulting from his attorney's being prohibited to “Google” the jurors.

Conclusion

Over the past several years, the legal field, like many others, has experienced some growing pains as new technology came into use. The most talked-about problems in this regard have involved jurors and judges who use the Internet to research the details of a case on their own, or run background checks on litigation participants.

Carino v. Muenzen offers a new twist on the story. Although background checks on jurors have become more common as the Internet and social media have grown popular, the practice can make some uncomfortable. Judges ' perhaps, including the judge overseeing the Carino trial ' may consider the practice to be not only unfair, but also somewhat unseemly, particularly in full view of the jurors, who might be blissfully unaware that juror questionnaires are just one of the sources of information attorneys may use to assess their fitness. However, technology is here to stay.

Even if court rules prohibit the use of technological research tools in the courtroom, there is nothing to stop lawyers from doing a little research on their own time, as the trial judge in Carino noted when he prohibited Internet searches in his presence, but said, “I can't control what goes on outside of this courtroom.” The attorney who does not, where possible, take the opportunity to investigate prospective jurors is not using all of the means available to help his or her client's interests.

Janice G. Inman is Editor-in-Chief of this newsletter.

In the recent appeal of a jury verdict in a medical malpractice case, the unsuccessful plaintiff challenged a judge's refusal to allow his counsel to conduct Internet searches of potential jurors during voir dire. The appeal asked the question: Should the court be permitted to limit the use of technology because it allows a tech-savvy attorney to check juror backgrounds while opposing counsel does not?

Background

The case, heard in the Superior Court of New Jersey, Appellate Division, is Carino v. Muenzen, 2010 WL 3448071 (N.J.SuperA.D., 8/30/10). It was originally brought as a medical malpractice suit by plaintiff Joseph Carino, individually and as the executor of the Estate of his wife Grace Carino, against Christopher Muenzen, M.D. Grace Carino had visited Dr. Muezen's office for an examination after she experienced two headache episodes. Because of her symptoms, the doctor suspected Carino was experiencing migraines, rather than a subarachnoid hemorrhage, though he did not completely rule out such a possibility. According to his testimony, the doctor did not tell Carino about this second possibility because it was not his practice to unduly alarm patients unless he was certain he was dealing with a particular ailment, or unless the next procedure would be to deal with that ailment. Still, in order to be sure (because a subarachnoid hemorrhage can be fatal), Dr. Muenzen sent Carino for a CAT-Scan, which came back negative. With this information in hand, along with his examination of the patient and his knowledge of her pain history, the doctor concluded that she was not suffering from a subarachnoid hemorrhage. He did not inform Carino that CAT-Scans are not 100% effective in diagnosing a subarachnoid hemorrhage. She underwent further tests, which also came back negative for subarachnoid hemorrhage. A week later, Carino collapsed, falling to the ground and hitting her head. She was then diagnosed with a subarachnoid hemorrhage and a subdural hematoma. She died shortly thereafter.

Expert testimony at trial indicated both of Carino's bleeding conditions could have resulted from her fall, although the subarachnoid hemorrhage could also have developed without head trauma. A unanimous jury returned a verdict of no cause of action, finding that Dr. Muenzen had not deviated from the standard of care. The trial judge therefore entered an order of dismissal.

Is It OK to Google?

The plaintiff appealed on several grounds, one of which concerned his attorney's use of technology in the courtroom. During jury selection, the plaintiff's counsel began conducting Internet searches of prospective jurors on his laptop computer. Defense counsel objected and the following exchange took place:

THE COURT: Are you Googling these [potential jurors]?

[PLAINTIFF'S COUNSEL]: Your Honor, there's no code law that says I'm not allowed to do that ' in any courtroom '

THE COURT: Is that what you're doing?

[PLAINTIFF'S COUNSEL]: I'm getting information on jurors ' we've done it all the time, everyone does it. It's not unusual. It's not. There's no rule, no case or any suggestion in any case that says '

THE COURT: No, no, here is the rule. The rule is it's my courtroom and I control it.

[PLAINTIFF'S COUNSEL]: I understand.

THE COURT: I believe in a fair and even playing field. I believe that everyone should have an equal opportunity. Now, with that said there was no advance indication that you would be using it. The only reason you're doing that is because we happen to have a [Wi-Fi] connection in this courtroom at this point which allows you to have wireless Internet access.

[PLAINTIFF'S COUNSEL]: Correct, Judge.

THE COURT: And that is fine provided there was a notice. There is no notice. Therefore, you have an inherent advantage regarding the jury selection process, which I don't particularly feel is appropriate. So, therefore, my ruling is close the laptop for the jury selection process. You want to- I can't control what goes on outside of this courtroom, but I can control what goes on inside the courtroom.

The Appeal

On appeal, the plaintiff argued that he lost “the opportunity to learn about potential jurors ' one of the most fundamental rights of litigation.”

The appellate court noted that, in New Jersey, judges are given broad discretion in conducting voir dire proceedings. Horn v. Village Supermarkets Inc. , 260 N.J.Super. 165 (App.Div. 1992), certif. denied, 133 N.J. 435 (1993). That authority is not unlimited however, as judges must act responsibly and within constitutional bounds. Ryslik v. Krass , 279 N.J.Super. 293 (App.Div. 1995).

In this case, the court rules said nothing about use of the Internet during voir dire. In fact, in April 2008, when the trial court administrator announced through a press release that wireless Internet access would thenceforth be available in the courthouse, no mention was made of any limitations. Additionally, the release said wi-fi in the courthouse would “maximize productivity for attorneys.” Neither in that press release, nor in any other cited place, was there any discussion of a requirement that attorneys notify the court or opposing counsel when they would be using the Internet.

With this background in mind, the appellate court concluded: “Despite the deference we normally show a judge's discretion in controlling the courtroom, we are constrained in this case to conclude that the judge acted unreasonably in preventing use of the Internet by Joseph's counsel. There was no suggestion that counsel's use of the computer was in any way disruptive. That he had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of 'fairness' or maintaining 'a level playing field.' The 'playing field' was, in fact, already 'level' because Internet access was open to both counsel, even if only one of them chose to utilize it.”

Despite siding with the plaintiff on this issue, the appellate court did not reverse on this basis, as the plaintiff could show no prejudice resulting from his attorney's being prohibited to “Google” the jurors.

Conclusion

Over the past several years, the legal field, like many others, has experienced some growing pains as new technology came into use. The most talked-about problems in this regard have involved jurors and judges who use the Internet to research the details of a case on their own, or run background checks on litigation participants.

Carino v. Muenzen offers a new twist on the story. Although background checks on jurors have become more common as the Internet and social media have grown popular, the practice can make some uncomfortable. Judges ' perhaps, including the judge overseeing the Carino trial ' may consider the practice to be not only unfair, but also somewhat unseemly, particularly in full view of the jurors, who might be blissfully unaware that juror questionnaires are just one of the sources of information attorneys may use to assess their fitness. However, technology is here to stay.

Even if court rules prohibit the use of technological research tools in the courtroom, there is nothing to stop lawyers from doing a little research on their own time, as the trial judge in Carino noted when he prohibited Internet searches in his presence, but said, “I can't control what goes on outside of this courtroom.” The attorney who does not, where possible, take the opportunity to investigate prospective jurors is not using all of the means available to help his or her client's interests.

Janice G. Inman is Editor-in-Chief of this newsletter.