A bad thing happens. It offends our sense of fairness and justice. We seek to redress the harm, but find out that there is no specific rule that covers the violation.
What does a civilized society or organization do? Why, we create a new rule to fill the gap, of course. It’s at the very core of the lawmaking/ rulemaking process. Rules provide consistency
A little while ago I wrote about growing predisposition of some jurors to conduct their own independent Internet research of the cases they were sitting in judgment on and how some jurors were even blogging or tweeting about an ongoing trial. Such extracurricular activities caused problems, even mistrials. It resulted in a tremendous waste of judicial resources, not to mention the time and money spent by both parties to the suit.
Now it seems, at least one court is starting to tackle the problem proactively head-on.
The San Francisco Superior Court is considering a rule designed to fill the gap. The new rule would make it crystal clear that a case requires their undivided attention and that means no blogging, no tweeting, no Facebooking and no independent Internet research of any kind. The jury is to decide based on the information presented in court, information that is presented under the rules of evidence and under the watchful eye of a judge, not some wikki-wacky, unsubstantiated Internet free-for-all where anyone can say anything they want.
The San Francisco Superior Court’s new rule is presently open for public comment. The event that triggered a rule change involved the jury selection of a lengthy criminal trial in late June when 600 jurors wound up being excused. [That’s no typo. It’s reported as six hundred.]
More specifically, during the voir dire questioning of one juror it seemed that he knew more about the case than should based on the courtroom discussion. It prompted conference in the judge’s chambers with the potential juror where it was learned that the juror did indeed conduct some of his own Internet research. He claimed no one told him not to do it. Oops.
When the rest of the jury pool was questioned, several others admitted to doing the same thing. Again, the popular explanation was no one told them not to even though they had verbally been admonished. Either they didn’t understand the admonition, or they didn’t think it applied to the Internet.
If adopted, the new rule will require that the civil questionnaire cover sheet the potential jurors receive will include an explicit warning telling them they are not to research any issues involving the case, blog about it, tweet about it, or otherwise use the Internet to obtain or share information about it.
Had the verbal admonishment been clearly understood by everyone there would have been no problem from the beginning. That clarity could have been achieved with verbal examples and/or written instructions similar to the ones the new rule is contemplating. Of course, that’s easy to say with the benefit of 20/20 hindsight.
The key to success is having the foresight to anticipate where misunderstandings could occur and plug the gap with better communications before the bad thing happens.
Mastering the art of prevention saves time, money, and avoids bureaucratic regulation. It’s a lesson that’s equally applicable to the business world. If only Wall Street had . . . .