Leveraging Social Media Analytics in Jury Selection

national trial lawyers top 100, criminal law, atla, aajBy Lisa Q. Dane

A large corporation was accused of financial irregularities by a government agency. The case was going to trial. Hundreds of millions of dollars were at stake. The corporation’s defense team wanted to empanel a jury that was as politically right-leaning as possible. The defense believed that such a jury would hold positive views about corporations and business, be less inclined to trust the government, and therefore be more open to its arguments.

As is typical in a big, high stakes trial, the defense team engaged jury consultants to gain an understanding of the prospective jurors within the brief time the judge allotted for jury selection. The consultants focused on the jurors’ appearance, their affect, and verbal skills, and drew inferences from those characteristics to inform the defense team’s voir dire.

But then the defense went a step further by engaging a team to conduct a social media analysis of the prospective jury pool.

Turning Data into Insight

A 2012 Pew Institute study found that 77% of individuals ages 30-49 are active on social media networking sites, sharing “the most intimate details of their livesdespite privacy concerns. Social media analytics consists of deploying sophisticated algorithms to sift rapidly through vast volumes of this rich data to identify connections maintained by individuals, as well as written and visual posts. The analysis may reveal significant connections between individuals that could be problematic, or perhaps even helpful if they were to sit on a jury. It also may uncover commentary about politics, religion, business, or other topics that can be critical to attorneys in jury selection.

Many bar opinions recently have called social media analysis of prospective jurors fair, even necessary. A recent opinion by the New York Committee on Professional Ethics states: “standards of competence and diligence may require doing everything reasonably possible to learn about the jurors who will sit in judgment on a case.” And as the American Bar Association advised in 2014: Unless limited by law or court order, a lawyer may review a juror’s or potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial.”

Of course, it is important that this review and social media research be conducted ethically and lawfully. For instance, the New York City Bar’s guidelines say, “Attorneys may use social media websites for juror research as long as no communication occurs between the lawyer and the juror as a result of the research.” In other words, the friending of people on social media for the purpose of requesting (or otherwise obtaining) information is prohibited. Even inadvertent online contact by attorneys may be problematic. This makes the use of analytical tools all the more compelling.

Who Are These People?

In the case of the corporation accused of financial malfeasance, the defense team leveraged a social media analytics tool that allowed researchers to quickly identify and analyze the profiles of more than 80 prospective jurors across such platforms as Facebook, Google+, Twitter, and Instagram, although, of course, not every juror had a profile. Unlike less sophisticated and more scattershot research attempts, this effort allowed for efficient keyword searching across all of a prospective juror’s connections to identify individuals involved in the industry at issue in the case, connections to the government plaintiff, or to witnesses, lawyers or other parties involved in the dispute. In addition, the jurors’ social media profiles were scanned for information on their pages or posts, including their political sentiments and views about business, if any.

The social media analysis was enhanced by simultaneous realtime research in aggregated public records to identify other relevant background information on the jurors such as voter registration, involvement in current or prior litigation, business affiliations, evidence of financial difficulties and possible criminal record history, and other indicia of lifestyle such as whether they lived in a $200,000 or $2 million house.

Relationships with the other side

This analysis uncovered one prospective juror with a Facebook photo showing him with drug paraphernalia. A quick review of public records revealed multiple convictions for marijuana possession. This juror was excused quickly.

Another prospective juror’s Facebook profile contained a photograph of him with President Obama at the White House. The defense did not think that this would be someone who could be relied upon to be pro-big business.

A review of one juror’s social media connections revealed relationships with individuals working at the government agency bringing suit against the defendant corporation, and still another was found to have been involved in recent prior litigation which he did not disclose on the juror questionnaire. . . as lawyers know people will do, either to get on, or off, a jury. Yet another juror, who was tiring of the selection process, posted a comment on her Facebook page while waiting in the jury pool stating that she expected that the attorneys were looking at social media and, if so, she wanted them to know she was very annoyed at having been kept so late in the day at the courthouse, adding, “Don’t pick me!”

In sum, the information gathered and analyzed during this process provided deeper insight into jurors’ backgrounds, and when melded with the analysis of the jury consultants, the defense was able to empanel jurors they believed they understood more fully.

After the trial began, the social media profiles of the jurors were monitored on a daily basis. If one of the jurors was commenting on the case online – in violation of the judge’s orders – that could have been grounds for a mistrial. Or, if one of the juror’s children, or spouses, was commenting, that, too, would have been relevant.

In the end, the jury found for the defense.

Reveal in minutes

Algorithmically-powered social media tools can reveal in minutes what normally could take attorneys and investigators days, weeks, or longer to uncover by other means. Having the capability to use these tools to examine the social media connections and profiles of individuals increasingly is becoming a critical differentiator and competitive advantage not just in jury selection, but in all phases of litigation, from discovery and backgrounding opposing parties and witnesses, all the way through to trial.

Of course, in this case, the defense may have prevailed without employing the capabilities offered by social media analytics tools to empanel the best jury it could. But the advanced research provided the defense with a higher degree of confidence in the jury it did select.

And it certainly was pleased with the outcome.

Lisa DAne

Lisa Dane is a Senior Managing Director in the Global Risk & Investigations Practice of FTI Consulting, and has over 20 years of experience conducting large-scale fraud investigations, asset tracing, due diligence, and litigation support for law firms and multi-national agencies. She routinely employs social media analytics in tandem with other investigative research capabilities, including in jury selection for clients going to trial.

More Than 655,000 Watched Livestream of Hulk Hogan Trial


530,000 people watched the Livestream during first week of the trial, for a total of 4.1 million minutes viewed.

More than 655,000 people viewed the Livestream of the Gawker Media v. Hulk Hogan trial on their mobile or desktop devices during the course of the trial, including more than half a million viewers watching at the same time.

Livestream’s partnerships with Wild About Trial, a criminal law app, and other court and media platforms are providing millions of people in the public and legal community with high-quality, real-time feeds into courtrooms they can watch anywhere and on any device.

Open up courtrooms

“We think good government starts with transparency and access, and we’re proud that courts across the country are using Livestream to open up courtrooms to more of the public,” said Sam Jacobs, Senior Vice President for Sales & Marketing at Livestream.

“Wild About Trial lets our users be the 13th juror in the hottest, most salacious cases going on around the country. Using the most innovative, cutting edge technology, Livestream allows Wild About Trial users to receive the best, strongest and most uninterrupted feed to any of their mobile devices,” said Alison Triessl, Founder of Wild About Trial.

“It is yet another way in which we deliver on our commitment to bring as many live events as possible to viewers across all platforms,” said Clayton Rose, General Manager, Livestream for News. “We are thrilled to be working with Wild About Trial and continuing to expand the ways in which more courtrooms are open to the public.”

Delaware top court uses Livestream

This month, the Delaware Supreme Court became the first State Supreme Court to broadcast non-confidential oral arguments via Livestream. The Justices in Delaware seek to benefit the legal community as well as provide an educational opportunity for students, schools, and members of the public interested in learning about the Delaware Courts. Viewers can watch attorney arguments, directives from judges and testimony directly from the witness stand in the most important trials taking place.

Users can view these lawsuits – live – from their phones, tablets, Apple TV, or any other device and from anywhere in the world through a partnership with Wild About Trial™, a mobile application designed to provide up-to-the-minute updates on trials throughout the country.

AZ Supreme Court Denies New Trial Despite Bailiff’s Improper Comment

bailiff jury

The Arizona Supreme Court affirmed a trial court decision to deny a new trial for a case in which the bailiff engaged in prohibited ex parte communication with the jury during deliberations.  The bailiff told the jury that an hour or two would be plenty of time for deliberations.

In a breach of contract trial between automotive parts retailer CSK, Inc., and electrical parts company, American Power Products, Inc., more than 24 witnesses, and 164 exhibits, one of which was more than 4,000 pages long, were introduced in a 12-day trial.  American Power Products sought more than $5 million in damages.

During closing arguments, American Power Products attempted to simplify the case, encouraging the jury to look specifically at “exhibit No. 412 Tab two” and avoid all other exhibits.  Counsel for CSK, Inc. suggested the jury reject all claims and counterclaims and award American the $10,733 it owed to American.

During jury deliberations, a juror asked the bailiff how long deliberations typically lasted.  The bailiff told the jury “an hour or two should be plenty.”  After deliberating for one to two hours, the jury returned a verdict for American of $10,733.

American hired an investigator, learned of the jury ex parte communication with the bailiff, and moved for a new trial based on improper jury conduct and the bailiff’s statement to the jury.

Motion for new trial denied

The trial court denied the motion for a new trial without conducting an evidentiary hearing.  American contended that the jury’s quick deliberation was “aberrational” and “kind of stunning.”

The court responded that it did not “think it was stunning at all,” and might have been in response to counsel’s failure to follow the court’s suggestion to simplify the case, which featured a confusing combination of contract provisions and technical jargon.

The court of appeals reversed and remanded the case, finding that the trial court erred by not holding an evidentiary hearing to determine how the jury interpreted the bailiff’s comments.

The Arizona Supreme Court reviewed the case finding it “raise[d] an issue of statewide importance.”  The court examined ex parte communications on a case-by-case basis, examining whether there was an improper communication and if so, if the communication was “prejudicial or merely harmless.”

Bailiff comment not prejudicial

The court determined that the bailiff’s communication with the jurors was improper, but that it had no bearing on the issues.  The court discussed that if the bailiff’s communication related to the evidence, ultimate issue, or applicable law in the case, or if it clearly interfered with the jury’s decision-making process, then the statements would be considered prejudicial.

In this case, the court found that the bailiff’s statement did not favor either party, and did not interfere with the jury’s decision-making process or deliberations.  The court reversed the court appeals’ decision and affirmed the trial court’s denial of a new trial.


The case is American Power Products, Inc. v. CSK Auto, Inc., case No.  CV-14-0261-PR, in the Supreme Court of the State of Arizona.

Defense Counsel Sleeps at Trial, 11th Circuit Affirms Conviction

sleeping defense counsel 2The 11th Circuit Court of Appeals has affirmed a lower court decision that a man convicted of murder was not prejudiced when his defense attorney admittedly dozed off and fell asleep during the trial.

Anthony Williams, along with two other accomplices, burglarized a man’s home.  When the homeowner intercepted them, they shot and killed him.

During the trial, several witnesses testified, including a defendant accomplice, implicating Williams in the crime and linking him to the gun used to kill the homeowner.

William’s defense counsel questioned every witness and cross-examined prosecution witnesses about inconsistencies in their testimony.  He also repeatedly objected to witness testimony and was allowed to question a witness outside the presence of the jury.

When defense counsel cross-examined forensic experts and policed officers, he elicited their acknowledgement of inconsistencies and exculpatory information regarding their scientific practices.

Defense counsel falls asleep

While the prosecution played a recording of an accomplice’s interview that took up 71 pages of the trial transcript, defense counsel dozed off.  After the recording ended, defense counsel immediately crossed-examined the Sheriff Office agent recorded in the interview.  The prosecution then requested a break, to which defense counsel interjected “I need to take a break; I fell asleep a couple of times.”

The jury found Williams guilty of first-degree felony murder and armed burglary.  He was sentenced to life in prison.  With new counsel, Williams attempted several post-conviction filings based in part on a claim of ineffectiveness of trial counsel.  Both petitions were denied and Williams then filed in the district court for the same relief.

The district court denied William’s claim based on factual findings that “’[a]lthough defense counsel indicated that he fell asleep for a portion of the time period during which the taped statement was played,’ Williams failed to ‘point to any other instance of counsel sleeping during the trial.’” The court further wrote that defense counsel was alert during the trial, cross-examined witnesses, and properly responded to objections and questions.

Asleep during non-critical stage

Williams then appealed district court’s denial of his petition for a writ of habeas corpus.  The Court of Appeals determined that the state trial court and the district court properly applied federal law in concluding that Williams was not prejudiced by counsel falling asleep a few times during a non-critical stage of trial when the jury listened to a recorded interview.

The Appeals court reasoned that Williams made no argument in his brief about the lower court ruling that he failed to demonstrate prejudice and “issues not clearly raised in briefs are considered abandoned” they did not need to address whether Williams was prejudiced by his counsel.s trial nap.  The court affirmed the denial of William’s petition for writ of habeas corpus.

The case is Anthony Williams v. Florida Department of Corrections, case number 14-11351, in the U.S. Court of Appeals for the Eleventh Circuit.

How to Avoid a Defense Verdict…Before You File Suit

Mastermind ExperienceYou are sitting alone in an empty courtroom long after the jury announced a verdict for the defense. There are papers and exhibits strewn across the counsel’s table, and there’s just minutes before the court officer will kick you out of the courtroom, but for just a few moments, you ponder, How the hell did this happen?

While you’re packing up your files in the empty courtroom, you’re struck by the simple realization that the case was lost long before the trial. The trial wasn’t lost by a lousy cross-examination or closing argument—the case was lost when you accepted a case that had danger points that you did not spot when you filed the lawsuit. Finding the holes in your case, before the lawsuit is filed, is the key to avoiding a defense verdict.

Do Your Homework Before Filing Suit

When you first meet your client, there are fuzzy feelings and you’re convinced you just signed up your next seven-figure case. Through rose-colored lenses, you see only the strong points of the case, i.e., liability is strong and the damages are humongous, and you rush to file the lawsuit. But once the lawsuit is filed, you spot cracks (craters really) in the liability and damages. You discover that your “perfect” client did time in Sing-Sing for stealing from the mentally ill or bungee jumps off bridges in his spare time, but by then it’s too late, you already filed the lawsuit.

Get every record that has any bearing on the liability and damages and evaluate the case from the defendants’ point of view.

  • Set expectations with your client via email and written policies, and educate them about your rules of communication.
  • Spot problems with a Pre-Litigation Checklist and a new client questionnaire.
  • Create a budget for the case based upon every anticipated expense, determine a realistic settlement value and compare the ratio of your legal fee to the expenses.

Step #1: The Introductory Email

Set expectations from Day #1 with an introductory email that explains your process for evaluating a new case. In an auto case, you might explain the process of getting the police accident report, medical records and witness statements and the time that each step will take.

In medical malpractice cases, you should explain your process for screening cases:

How We Evaluate Your Case

On the first day that we speak with you, we will either: (a) decline your case, or (b) move your case to “Under Consideration” in our case management system. When a case is “Under Consideration,” this means that we don’t have enough information to determine whether your case has merit—in most cases, we need your medical records.

Once your case is moved to “Under Consideration”, there are 3 steps in our evaluation:

  1. We get the medical records,
  2. We review the medical records.
  3. Our attorney has a face-to-face meeting with a board certified surgeon to review the medical records and discuss his opinions about the merit of your case.

Send an email with your Rules of Communication so your clients understand that you do not take unscheduled phone calls and do not respond to email or texts. Make sure your clients understand that they must schedule an appointment to speak with you and that you expect them to specify the purpose of the phone call in advance.

Next, you want to give your new clients periodic updates about the status of your case evaluation. With customer relationship management software (CRM), you can send email updates to your clients at every milestone of the case with the click of a button. Even when you’re in trial and your staff is busy, your clients will receive automated emails about every milestone in the case evaluation, i.e., “Today, John spoke with a surgeon about your case and we will schedule a time for him to speak with you.”

Step #2: Your New Client Questionnaire

Once your client has an overview of your process, tell them what you need with a new client questionnaire. Don’t ask for the world—ask for 5-8 tidbits of information. For a soft-tissue neck/back injury auto case, you can find out whether your client has a “serious injury” with just 4 questions in your questionnaire:

  • Have you had a MRI or CT scan of your back/neck?
  • Have you had surgery or do you anticipate having surgery?
  • Did you have any prior injuries to your back/neck?
  • When was the last time you treated for your injuries?

Make the process easier for your staff and give instant feedback to new clients by automating the process with an introductory email, a series of update emails and a new client questionnaire. And just to make sure your clients are happy, make sure your staff calls new clients at least once a month just to say “hi.”

Step #3: Your Pre-Litigation Checklist

Let’s say you love the new case and you want to file the lawsuit now. First, create a Pre-Litigation Checklist that lists all of the information you need and have your staff complete the checklist, sign it and submit it for your review. The Pre-Litigation Checklist covers:

  • Names and Addresses of Medical Providers (pre and post-accident),
  • Names and Addresses of Employers and Tax Records,
  • Names and Addresses of Witnesses, and photographs and videotape of the injuries and accident site,
  • Social Media Search to check for incriminating photos, etc.
  • Criminal Background Search
  • The beauty of a Pre-Litigation Checklist is that you’re getting the documents that you’ll need for the lawsuit and once you’re flooded with discovery demands, you’ll be ready to serve a complete response.

The Power of a Mastermind

Step #4: Your Clients’ Responsibilities

Make sure your clients understand their responsibilities from the get-go. Ask your clients to sign an agreement acknowledging that they will have to jump whenever you ask, i.e., respond to your phone calls within 24 hours, spend time preparing for their deposition and trial testimony, etc.

Your Responsibilities

We will do most of the work in your lawsuit, but we can’t do this without your help. If you don’t respond to our emails or phone calls and provide the documents that we need, your case will face an endless series of delays and adjournments from the defense lawyers. And if you are continually non-responsive to our emails and phone calls, we may be forced to end our attorney-client relationship. We hope that won’t be necessary.

Okay, you’ve got the records you need for litigation and your client understands her responsibilities, but you’re not quite ready to file the lawsuit.

Step #5: The Case Budget

Before filing suit, you should sit down with your staff to estimate the expenses of each phase of litigation. The expenses are broken down into 3 categories:

  • Pre-Lawsuit Expenses,
  • Discovery Expenses (filing of lawsuit to note of issue),
  • Trial Expenses (note of issue to conclusion of trial)

The expenses include filing fees, consultation fees with experts, photocopy fees for medical records, stenographer and videographer fees for depositions, transportation, meals and lodging of experts, courtroom exhibits, expert witness fees for reviewing the file and trial testimony, etc. Be as precise as possible in estimating the costs.

Once you have a total estimate of costs for the lawsuit, you place a realistic settlement value (the bottom line # that you will recommend for settlement). With the settlement value, you can then calculate your legal fee and the ratio of your legal fee to the total expenses (the ratio of your legal fee to case expenses should be 10-1).

boxing victory

Deliver a “Shock & Awe” package of educational materials that explains the inner workings of your practice.

Step #6: Meeting the Client

There is nothing that beats the personal touch of a home meeting with a client. You’re showing that the client isn’t just a number to you and that you are willing to spend the time to get to know her. And you might not like what you see—perhaps your client hasn’t fed her children in three days or has a Confederate flag hanging from her front porch—but isn’t it better that you find out before you file her lawsuit?

Deliver a “Shock & Awe” package of educational materials that explains the inner workings of your practice. The “Shock & Awe” package might consist of a pocket folder that contains your firm’s policies:

  • Rules of Communication
  • 8 Basic Rights
  • Rules for Protecting Your Privacy and Confidentiality Rights
  • Educational books, DVDs and CDs

Annex the Case Budget to the retainer agreement so your client knows how much money you will be spending on their case. If your client is humble, nice and passes the vetting process, it’s time to file the lawsuit.

A Small Gift for You

If you’d like to get our intake forms (i.e., Pre-Litigation Checklist, Case Budget, Clients’ Responsibilities, etc.), send an email to our Problem Solver and Happiness Creator, Alyssa Marcello, at receptionist@fishermalpracticelaw.com and we will be happy to email them to you.

Don’t forget to register for the Mastermind Experience.

Watch the NTL Summit LIVE on Periscope

Thanks to modern internet technology, you can watch the NTL Summit live and online by clicking the links below. We are “livestreaming,” using the Periscope app and the camera in my cell phone, to present you with a free, live broadcast of selected events.periscope square Simply click on the links below.
Log on to
All times Eastern Time Zone. Schedule subject to change.





  • 7 pm: Grammy winner Pat Benatar and Neil Giraldo play a concert at the President’s Reception

Tuesday, Feb. 9:

    Never watched a live broadcast on Periscope? Visit To view an endless stream of popular broadcasts you can visit



NTL Summit is the Ultimate Trial Advocacy Conference

NTL summit-400x267The upcoming Trial Lawyers Summit sponsored by The National Trial Lawyers in February in South Beach, Florida, is the ultimate trial advocacy conference, where lawyers can get a year of CLEs in three days, taught by an all-star team of trial lawyers. It is like no other legal conference, ever.

Hundreds of trial attorneys will flock to the fifth annual Summit to learn the secrets of winning cases and generating revenue for a prosperous practice. Highlights include:

  • A Panel on Trial Skills composed of Hall of Fame Inductees
  • Trial Skills I — Psychology of Persuasion hosted by Howard Nations
  • Trial Skills II — Anatomy of a Trial hosted by Eric Romano and Mark O’Mara

Outstanding networking opportunities start on Sunday, February 7th with a Super Bowl 50 Kick-Off Party, continuing with keynote speaker NFL legend Terry Bradshaw at The Trial Lawyer Awards & Recognition Luncheon, followed by the President’s Reception with live music by four-time Grammy Winner Pat Benatar and Neil Giraldo and wrapping up with the Fat Tuesday networking reception.

The Trial Lawyers Summit is the conference to attend for 2016. Further information is available at (866) 665-2852 and online.The agenda for the program is available online at http://ntlsummit.com. Attendees can register now online for the Summit, which will be at the Loews Miami Beach Hotel, right on the Atlantic Ocean. CLE credit information is available online.

Unmissable Moments

The Summit includes dozens of unmissable moments thanks to the wise and tireless efforts of Howard Nations, John Romano, Mark O’Mara and Harlan Schillinger. Just to name a few of the seminars:

  • The Panel on Trial Skills with hall-of-famers Lisa Blue on Voir Dire, Tom Girardi on Opening Statement, Chris Searcy on Direct Examination, Mike Papantonio on Cross Examination and Mark Geragos on Summation. There will be a Q&A with the audience.
  • Opening remarks by NTL leaders Hezekiah Sistrunk, Jr. and Keith Givens
  • A fabulous exhibit hall filled with sponsors that offer lead generation, financing, web design, legal services, trial exhibits and much more.
  • A book signing with legal legend Alan Dershowitz.
  • An Ethics live presentation hosted by Seth Price.

Marketing and business development is on the agenda at a special PILMMA event on Sunday, Feb. 7, moderated by Ken Hardison. Register at www.pilmma.org/ntlsummit. Speakers include Ken Hardison on Systematic Marketing and Marketing to Millennials, Chris Mullins on The Overlooked Art and Intimacy of Asking Screening Questions, Ken LaVan on The Key Metrics You Must Know in Your Law Firm and Tanner Jones on Creating Online Synergy with Your Offline Marketing.

  • A half-day session will be held on Tuesday on The Business of Law & How to Seriously Advance It will be led by Harlan Schillinger and will feature Dustin Ruge, Michael DeMayo, Gary Falkowitz, Adam Warren, Mark O’Mara and Mike Papantonio.

Prospering with Early Risers

Early birds will love the 6:30 am session Monday covering burn injury litigation, debunking defense experts, proving proximate cause and using demonstrative technology, hosted by John Romano with speakers, Billy Walker, Elizabeth Zwibel, Edward Capozzi, Troy Rafferty and Michael Burg.

The Tuesday Early Bird Session covers winning the “early game,” innovative deposition tactics, courtroom advocacy and tips from the trenches, hosted by John and Eric Romano and featuring Dino Colombo, Ken Suggs, Peter Burg, Gary Pillersdorf, Shareef Rabaa, Ed Hill and Mark Kosieradzki.

Wednesday opens with Raising Your Communication Skills to the Next Level with author Dr. Dan Hill and ACT of Communication’s Alan Blumenfeld and Katherine James, followed by interaction with trial skill masters Mark Geragos, Arthur Bryant, Morris Dees, Alan Dershowitz and Fred Levin.

As an added value for attendees, the APITLA trucking litigation program is set for Sunday, moderated by Dan Ramsdell  with speakers Bernard Walsh, Marianne Howanitz, Fred Cunningham, Jon Papin, John Romano and David Sweat.

The Summit is the conference to attend for 2016. Further information is available at (866) 665-2852 and online.


Traffic Stop for Littering Leads to Lawful Drunk Driving Arrest

Cig Butt Highway

Police officers can make traffic stops for non-traffic offenses according to the Wisconsin Supreme Court. A state trooper who stopped a vehicle for littering and subsequently made a drunk driving arrest was within his legal authority to do so, the high court has ruled.

Littering – and Driving – While Intoxicated

Defendant driver Daniel Iverson was driving at 1:00 AM on January 29, 2014 when a state trooper observed him drift toward the centerline and back twice. The trooper continued to watch as Iverson stopped completely at an intersection with yellow flashing lights, even though no other traffic was in sight. At that time, the trooper later testified, he did not believe he had reasonable suspicion to make a traffic stop.

When the state trooper observed Iverson flick a cigarette butt out of his driver’s side window, he pulled over the vehicle based on a non-traffic statute that prohibits littering on roadways in the state of Wisconsin.

Wis. Stat. Section 287.81 imposes a maximum $500 fine for “depositing or discharging any solid waste on or along any highway” or permitting any solid waste “to be thrown from a vehicle operated by the person.”

Wis. Stat. Ch. 287 defines “solid waste” to include “discarded or salvageable materials,” and the majority held that cigarette butts “manifestly constitute” discarded materials.

Littering as a pretext?

After the trooper pulled Iverson over, Iverson admitted he had tossed the cigarette butt. Through the course of the conversation the trooper developed probable cause to believe Iverson was driving while intoxicated.

After his arrest, Iverson pleaded not guilty to Operating While Intoxicated (OWI) – his first offense – and filed a motion to suppress. Arguing that the trooper illegally used littering as a pretext to determine whether Iverson was driving drunk, the defendant driver asked the Wisconsin circuit court to dismiss the case in its entirety.

Iverson’s attorney argued that discarding cigarette butts is not “littering” by definition because people do it all the time and rarely – if ever – receive citations for doing so.

The Wisconsin circuit court granted Iverson’s motion, which was later affirmed in a one-judge opinion by a state appeals court. The opinion held that troopers can make stops for suspected crimes or traffic violations, but noted that littering is neither a crime nor a traffic violation because it carries with it no potential for jail time.

Cops can enforce littering law

Concluding that state troopers have the authority to stop vehicles based on probable cause or reasonable suspicion that a vehicle driver or occupant has littered, the Wisconsin Supreme Court unanimously reversed. The high court rejected Iverson’s claim that the state trooper did not have authority to stop him for a littering offense.

Quite the contrary to Iverson’s defense, the Court noted that state traffic patrol officers have specific authority under Wis. Stat. Section 110.07 to enforce the littering statute.

Justice Ziegler, writing for the majority, held:

“Under the court of appeals’ interpretation, an officer would be required to sit idly by even if an individual threw an entire bag of garbage out of a vehicle’s window, simply because littering is a non-traffic civil forfeiture offense. We conclude that a traffic stop to enforce Wis. Stat. Section 287.81 is generally reasonable if an officer has probable cause or reasonable suspicion that a violation of § 287.81 has occurred.”

Rejecting the lower courts’ conclusions that stops must be based on suspicion of crimes or specific traffic violations, the Supreme Court held that state troopers can stop motorists based on probable cause or reasonable suspicion of non-traffic civil forfeiture violations.

The case is State v. Iverson, 2015 WI 101 (Nov. 25, 2015) in the Wisconsin Supreme Court.

Concussion Litigation Sparks Advocacy, Increases Nationwide Awareness

TBI Football

NFL players rely on government programs to provide healthcare instead of the National Football League covering their traumatic brain injury healthcare.

Professional and amateur sports leagues have finally begun making key changes to protect football and other close-contact sports players against traumatic brain injuries.

These protections are largely a result of the increased awareness surrounding traumatic brain injuries nationwide. Due to recent high-profile litigation, including suits against the National Football League, more understanding of the long-term impacts of concussions now exists.

The National Trial Lawyers recently discussed a new report by the American Association for Justice (AAJ) with several traumatic brain injury advocates currently revolutionizing the health care approach to both student and professional athletes.

Recent Widespread Awareness

According to the David Ratcliffe, a researcher with the AAJ, it is only recently that a widespread change in attitude surrounding concussions and traumatic brain injuries has occurred. Ratcliffe, the of the new AAJ concussion report said, “More players, parents, coaches, and schools are aware today more than ever before of the risks associated with head trauma. This dramatic change in culture is largely due to high-profile litigation against colleges and the NFL that has continued to push for accelerated changes, as opposed to the incremental change the AAJ has seen over years past.”

As maConcussions and the Courthouseny as 3.8 million sports-related injuries occur each year and concussion management overall is still inadequate. The AAJ issued a report to raise further awareness titled Concussions and the Courthouse, which can be found here. The AAJ will continue to advocate for better risk-management and better concussion care.

Jason Luckasevic, a Pittsburgh attorney, brought concussions in sports to international attention when he filed the first two lawsuits against the NFL in 2011 on behalf of more than 200 NFL players. Luckasevic’s neuropathologist friend, Dr. Bennett Omalu, discovered a specific form of brain disease common in NFL players.

Luckasevic hopes to protect all athletes – including millions of children – to avoid repeated head trauma. “There is a need to make sure athletes are not at risk of chronic brain damage due to chronic carelessness of leagues,” Luckasevic told NTL.

“Today, we continue this conversation to not only protect those former NFL players, but also all athletes – including millions of children – involved in contact sports, so that they can avoid this public health concern involving repeated head trauma,” said Luckasevic.

Leonard Marshall, a former NFL player for teams including the New York Giants, believes it’s his “duty, honor, and privilege to eradicate TBIs (traumatic brain injuries).” Marshall played in the NFL for twelve years and was a two-time Super Bowl champion.

Once a former All-Pro defensive lineman for the Giants, Marshall was diagnosed with signs of Chronic Traumatic Encephalopathy (CTE) and became a sports safety spokesman to raise head trauma awareness. For more than eight years, he has been committed to trying to make a difference with the goal of making it safer for kids to play tackle football.

Marshall formulated a platform to reach America’s youth and parents called the Brain Unity Trust, a non-profit organization combined of medical experts, attorneys and player. Brain Unity Trust is the “first of its kind” and advocates awareness for all sports and athletes, including cheerleaders, who Marshall says “may also suffer from TBIs while participating in sports.” Find out more info at Brain Unity Trust and PracticeLikePros.com.

Marshall told the NTL, “There’s all this education out there about the risk of drinking, drugs, and sexual contact . . . these are all things that should be understood. However, TBIs should be understood, studied and talked about with the same compassion.”

Zachary Lystedt Law

Victor Lystedt experienced every football parent’s worst nightmare when his son Zachary suffered a concussion during a football game one Friday night. Zachary Lystedt went down hard during a game and was directed to sit out for two plays before being thrown back into the game. Several minutes later, Zachary became unconscious while playing and was airlifted to the nearest hospital. Lystedt’s son began rigorous physical therapy, and the Lystedt family was devastated when Zachary could not even talk for the first nine months.

“People must understand youth athlete’s brains are totally different than adult brains, and heal totally different . . . they need time. Understanding concussion management is key to keeping your kid safe,” Lystedt told the NTL. “Once we were able to use all the lawyers and the experts to identify why our son was hurt, I now feel it’s my duty to call upon parents to understand this nationwide. This is an important education piece in regards to football and all sports.”

The NTL also spoke with Richard Adler, the attorney for the Lystedt family and the drafter of the “Zachary Lystedt Law,” the first of its kind. Adler, who is based in Washington, told NTL,

“Education is the primary focus to start. An education campaign in the state of Washington still resulted in many soccer, lacrosse, and football injuries statewide. We realized education was only going so far and didn’t have the stickiness we were hoping would stay with the school administrators and parents.”

When in Doubt Sit Them Out

That’s when Adler drafted Washington’s When in Doubt Sit Them Out law. Adler’s legislation campaign garnered a lot of support from doctors and Seahawks players and fans. The law passed on May 14, 2009 and since then, all states have adopted similar principles.

Adler told NTL,

“When a player is suspected – not diagnosed – they must be removed and cannot return to play until a release by a medical professional is given. Then, there must be a graduated return to full play. We are still finding that many youth athletes across the country have died. Ages of eighteen and under are when athletes see issues of Second Effects Syndrome. A TBIs are truly traumatic. The CDC in 2002 called them a ‘silent killer’ before Congress.”

Adler also said, “Mandatory parent-meetings is an idea I’m still working with. We need to change the culture of sports. Coaches need to know parents are involved and parents need to attend school meetings and hear presentations.”

According to Adler, “Another next step is a call for national legislation. All states have concussion laws. Bicycle helmets, motorcycle helmets, and seatbelt laws are not even in all 50 states!”

Adler believes sanctions to hold coaches accountable are also invaluable tools for raising concussion awareness and protecting our country’s athletes. “Coaches all too often look the other way because of the culture of the sport,” Adler pointed out.

“The discussion is not just about returning to practice and getting to compete, but also returning to the classroom,” Adler told NTL. “We need to make education and accommodations there the focus because education should be first . . . returning to the field or arena should be second.”

Strengthen parental notification

AAJ’s David Ratcliffe stated,

“We want to strengthen parental notification, which is already in place in six states and is a very simple thing to do. Parents nationwide should push states to add this to state laws where it is not already in place. These laws generally only cover high school, but a lot of these head trauma problems expand to middle school and even elementary school. We need a push for state laws instead of a nationwide practice of avoiding them.”

Leonard Marshall

Leonard Marshall

Leonard Marshall has a message for those who believe concussion and TBI advocates are merely trying to kill football:

“Grow up. This is a contact sport and you’re in the air often with the potential to fall on your head and then contract a traumatic brain injury. I’ve come across a number of different people in my field – Hall of Famers and accountable football players – who have legitimately experienced this stuff and have seen the lack of responsibility and accountability firsthand. This stuff is going to happen. In fact, it’s going to happen to more kids between ages 8-18 because of the fact that the brain is not fully developed. When you smash into each other at a high rate of speed with improper equipment or improper coaching, the risks get greater. It’s only inevitable that over time, if we don’t make changes now, it’s only going to get worse.”

Marshall pointed out the example of Buddy Teevens, head football coach for Dartmouth University. Marshall believes Teevans has a genuine understanding of head injuries and a great approach to protecting his players. “The least amount of time spent practicing on the field actually leads to the most results and better games. It’s all about playing the game in a manner that you don’t go out on the field with the goal to maim or personally injure someone else. Athletes need to play with physicality but also with safety concerns. I’m very proud of Teevens’ football program,” Marshall told NTL.

We just had a boy die…

As a parent who has experienced firsthand the heartbreak of a traumatic brain injury suffered by his child, Lystedt often receives the question, “Would you ever let your son play football again?” His answer is a resounding, “Yes. Why wouldn’t I? It’s the safest the game has ever been. It’s more talked about now, and it’s looked at with an objective eye so much more than it ever has been.”

Lystedt continued,

“We’re not all the way done, though. We just had a boy die here in Washington State which is a very sad thing. I know we need to do a whole lot more when it comes to the educational aspect. My son battled for his life . . . battled really hard, for a long time. I think the reason he survived is the warrior attitude that sports gave him. He’s been doing sports all his life, and now his sport is to recover and get better. He’s motivated internally to get better every day. I think with the proper coaching and management of any sport, we can keep it a lot safer. I don’t think there’s any piece of equipment that can stop a concussion if it’s going to happen. I think what we can do is manage it thereafter and give our child the full time needed to recover and monitor this recovery by the proper people in the medical field, while educating parents, coaches and teachers. The opportunity to play a sport is a very great thing to give a kid and I wouldn’t want to take that away from any one of them.”

To view a copy of the AAJ’s full report, visit Concussion.Justice.org.

Jacoby & Meyers Continues Second Circuit Push for Non-Lawyer Equity Investors

Law Firm Needs Money

Jacoby & Meyers LLP – one of the nation’s largest personal injury firms – is asking the Second Circuit to reconsider the constitutionality of a New York regulation prohibiting law firms from selling stakes to non-lawyers. Both the U.S. District Court for the Southern District of New York and the Second Circuit previously agreed that Jacoby & Meyers’ constitutional challenges were “entirely without merit.”

In Need of Funds

Originally filed in May 2011, Jacoby & Meyers’s suit claimed that Rule 5.4 of the New York Rules of Professional Conduct was unconstitutional. The personal injury firm claimed the ethical rule unconstitutionally blocked firms from accepting non-lawyer investments, including equity ownership.

Under First and 14rh Amendment, as well as Dormant Commerce Clause grounds, Jacoby & Meyers argued its “pioneering efforts . . . require a substantial infusion of new capital.”

Jacoby & Meyers continued by admitting in some circumstances, the infusion of new capital can be found in the obvious places: partner contributions, retention of earnings on fees, or bank loans. However, the firm opined these routes are now becoming “too expensive” to promulgate its “pioneering efforts to provide quality legal services at a reasonable cost to economically challenged individuals who would otherwise have no access to the legal system.”

The Second Circuit opinion sarcastically responded:

“But fear not. Jacoby & Meyers says it has received ‘numerous offers from prospective non-lawyer investors who are prepared to invest capital in exchange for owning an interest in the firm. Indeed, there allegedly are ‘several high net-worth individuals’ and institutional investors who ‘have expressed their commitment to invest significant sums of money’ in [the firm] in exchange for equity in the firm. It is only the ban on non-lawyer equity ownership of law firms . . . that has prevented J&M from entertaining these offers.”

Overhaul of regulation of legal services

The UK (a nation that shares our language and legal history) has a striking revolutionary approach to non-lawyer equity investors compared to that of the United States. The U.K. Legal Services Act—adopted in 2007, three years after the blockbuster Clementi report —radically overhauled the regulation of legal services in England and Wales. The 400-page act instigated hundreds if not thousands of changes, including allowing non-lawyers to hold ownership and management positions in law firms.

“The U.K. reforms are about putting the customer at the heart of the relationship, and about prioritizing the needs of the customer. The reforms allow for people who have different skills and expertise to be brought together—people who typically aren’t brought together—in order to meet customer needs, and in order to improve access to justice and to legal services,” said Alex Roy, the then-head of the Legal Services Board of England and Wales.

Under UK’s Legal Services Act, the creation of new ways of providing legal services—including through alternative business structures—is more than simply permitted; it is actively encouraged.

Serving the Under-Served

The firm said in its complaint that it “has become synonymous” with providing legal services for under-served populations and that without being allowed to receive non-lawyer investments, it would not be able to provide “low-cost legal services to the poor.”

The lawsuit experienced many incarnations, including three amended complaints that named the presiding judges of the state Appellate Division’s four departments as defendants. The first amended complaint was dismissed because the court said the firm did not show Rule 5.4 caused Jacoby & Meyers any actual injuries.

On appeal, the firm argued before the Second Circuit that it had not challenged any other provisions of state law in the suit out of concern and caution that the circuit might abstain from deciding the case.

The Second Circuit appellate panel vacated the earlier judgment and remanded the suit so that the plaintiff firm could file another amended complaint in June 2013. This amended complaint allowed Jacoby & Meyers to tack on more than a dozen state statutes that purportedly blocked the investments too.

The latest amended complaint was filed in March 2015. In dismissing the suit again, U.S. District Judge Lewis A. Kaplan issued a strongly-worded, blunt opinion rejecting the personal injury firm’s arguments.

Judge Kaplan wholly rejected the firm’s arguments, calling some “frivolous” and others a misstatement of the law that reflected “a fundamental misunderstanding” of constitutional law that rests on a “woefully misguided premise.”

Todd S. Garber, one of the lawyers for Jacoby & Meyers said in a response to the district court opinion, “While we are disappointed with the decision, we look forward to the Second Circuit’s review of the District Court’s ruling.”

The case is Jacoby & Meyers, LLP, and Jacoby & Meyers USA II, PLLC v. The Presiding Judges of the First, Second, Third and Fourth Departments, Appellate Division of the Supreme Court of the United States, New York. Case No. 11 Civ. 3387 (LAK). The opinion can be found here.