11/1/11

Freelance Writer Who Blogged While Sitting on Illinois Wrongful Death Jury Found Not to Have Compromised Jury Integrity and $4.75 Million Award Stands. For Now.

It should not come as a surprise to many that the juror who blogged about her experiences while on an Illinois jury gave defense counsel a solid basis for appealling the $4.75 million verdict that came down against a commuter railway in a wrongful death case brought by the widow of a blind man who died, she alleged, as a result of the railroad's negligence.

Some, however, may be surprised to find that the juror's blogging about her days on the jury, for a total of six posts, did not result in a reversal: on September 30, 2011, the Illinois appellate court ruled that her actions didn't sway the jury or compromise the integrity of their deliberations.  (Read the opinion here.)

Who was this blogger?  Eve Bradshaw is a self-described freelance writer based in Chicago, 50 years old and a mother of three, who sat on an Illinois jury and wrote about it, in a series of posts for her Blogger blog The Green Room, which she has been publishing for several years.

Read the posts in question, or read Mrs. Bradshaw's blog in general, and you'll find a nice person.  Her posts about what was going on during the trial aren't smoking guns of jury tampering or jury evildoing; there is nothing sinister here, which was important to the appellate court. 

Nevertheless on appeal, the defendants argued that jurors should have been interrogated to determine whether or not the blog posts had impacted their deliberations, especially since the posts contained descriptions of communications between the jurors themselves.  It wasn't a winning argument -- however, part of that result springs from the content of the posts themselves (see, e.g., paragraph 63 of the opinion).

It's not over: the appellate court decision could get taken up to the Illinois Supreme Court, and with almost $5 million on the line, I'm betting the defendants will do so. (There are other points of error here as well; a subsequent appeal seems pretty much a given.)

Now, here's what I'm thinking:  first of all, what the heck?  As a lawyer, no I don't think that jurors should be blogging about what is going on -- no more than they should tweet about it, chat over coffee at Starbucks about it, or discuss anything with a member of the media.  At most, I might be willing to consider the posts being saved as drafts ... but to publish them while the trial is in process?  Scary stuff for a lawyer, juror blogging.

I don't think any communication by a juror about the trial process should be condoned, period.  It's a slippery slope to find blogging different than, say, chatting with a reporter, no matter the content of the posts themselves. If Mrs. Bradshaw had voiced these communications to a reporter who then published them in the local newspaper, would we have the same result?

That being said, it also makes me wonder about the additional responsibilities this places upon trial attorneys because if I were still litigating, you can bet your bottom dollar I would have a paralegal assigned to monitor every juror to insure there was no web chatter - be it Twitter, Facebook, or now, personal blogs.  

Seems to me that some will argue that okaying this blogger's posting means that lawyers now have a duty to monitor juror blogging (and to discern that they are or may be blogging) since the blogging itself has been found acceptable.  That's probably true even if there's a jury instruction not to blog (or tweet, etc.).

Taking off the lawyer hat and putting on the writer one, I have to wonder about the risks here.  First, to blogging itself.  Blogging is such a stepchild; a journalist reporting the day's events in the courtroom is one thing.  Posting about jury experiences while you're on the jury and sworn to protect its integrity doesn't do much to uplift the reputation of bloggers in the eyes of the traditional media.

Second, to the blogger.  Consider the potential personal risk of ciivil liability here -- what happens to the blind man's widow if the Illinois Supreme Court goes the other way and reverses that $4.65 million award because of six blog posts? What happens to the blogger then? 

Scary situation up in Illinois. 


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