I sometimes facetiously tell legal ethics classes that the average judge is ten years behind the average lawyer in technological acumen, who is five years behind the average 13-year-old. The law and legal ethics consensus is always playing catch-up with technological developments, and every time technology is put to a new or unexpected use in a trial, some judge may react to it like a Cro-Magnon encountering his first flame.
This happened recently in the case of Carino v. Muenzen (N.J. Super. Ct. App. Div.) During jury selection, plaintiff’s counsel began using his laptop computer to go to the Web and seek information on prospective jurors. 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. I — 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.
As blogger Eugene Volokh correctly points out, there is no authority for the judge’s insistence that trial counsel must notify an adversary and the court in advance of using the internet access during jury selection, or any other part of a trial. The court rules don’t address the matter, in part because they were written before anyone considered the internet to be a factor in trial at all. But since the trial court administrator for the jurisdiction issued a press release (in 2008) announcing that “wireless internet access” had become available throughout the Morris County Courthouse to “maximize productivity for attorneys” and other court users, and mentions access to online database” as a likely use of the resource, it is clear that plaintiff’s attorney was doing nothing more nor less than zealously representing his client using all available means at his disposal.
Achieving the “fair and even playing field” that the judge in the case extols does not require attorneys who are diligent in their understanding of and proficiency with technology having practice applications, especially those that have already been embraced by the local court system, to wait until their less astute adversaries catch up. The defense attorney could and should have brought his laptop to voir dire, and the judge should not have allowed his lack of industry to prevail as the standard. Though no “notice” was required by any existing rule, the judge had notice, by virtue of the fact that the jurisdiction had long ago announced that Wi-fi was available in the courthouse to be accessed by attorneys opportunistic enough to use it to their clients’ benefit.
There is a human tendency to recoil in horror from the uses of new technologies, but judges need to temper the impulse. In this case, a diligent, ethical attorney was stifled by that impulse, and a lagging advocate, and the advocate’s client, was rewarded.