N.J. court oks Googling jurors during voir dire

Now that New Jersey courtrooms have Wi-Fi capability, trial lawyers with wireless laptops have a distinct edge: the ability to Google prospective jurors at the counsel table.

And an appeals court has given its blessing to the practice, reversing a trial judge who told a lawyer to disconnect lest he gain an unfair advantage.

"That [plaintiff's counsel] 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 court said on Aug. 30 in Carino v. Muenzen, M.D., A-5491-08.

"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."

During a Morris County medical malpractice trial on May 14, 2009, Superior Court Judge David Rand -- in response to an objection by defense counsel -- asked plaintiffs lawyer Mitchell Makowicz Jr. if he was Googling jurors' names:

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

[PLAINTIFFS 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?

[PLAINTIFFS 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.

Rand also criticized Makowicz for not seeking advance permission to conduct his research in court.

The judge went on to say that he believed "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."

Rand said Makowicz's use of the internet gave him "an inherent advantage regarding the jury selection process, which I don't feel is particularly 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 case ended with a verdict for the defense, and Makowicz raised the Googling ban on appeal, calling it an abuse of Rand's discretion.

Appellate Division Judges Mary Catherine Cuff, Christine Miniman, and Alexander Waugh Jr. agreed. Although trial judges have wide discretion to control the conduct of a trial in their courtrooms, that authority is circumscribed by "the judge's responsibility to act reasonably and within constitutional bounds," they said.

Rand cited no authority for his edict and the issue isn't addressed in the rules of court, the appeals court said. What's more, when Morris-Sussex Assignment Judge B. Theodore Bozonelis announced Wi-Fi availability in the courthouse in 2008, his press release -- which said the service "allows court users ... to access electronic databases" -- said nothing about lawyers having to give advance notice of their intent to use it.

Courthouses in all 21 counties offer wireless internet access, says Judiciary spokeswoman Winnie Comfort.

While finding Rand acted outside his authority in forbidding in-court computer research, the panel said no demonstration was made that the ruling was prejudicial.

The judges noted that Makowicz did not cite any jurors who were unqualified to serve, and did not claim he would have exercised a peremptory challenge for any juror if he had more time to research them. In fact, he still had the opportunity to research jurors during court breaks and overnight between the first and second days of jury selection.

Makowicz and the defense lawyer in the case, Neil Reiseman of Reiseman, Rosenberg & Pfund in Morris Plains, did not return calls about the ruling.

The suit, brought on behalf of a woman who died after suffering a brain hemorrhage, charged that her internist, Christopher Muenzen, deviated from the standard of care by failing to recognize the patient's symptoms as requiring emergent treatment.

Makowicz also claimed on appeal that the trial judge erred in refusing to allow him to present a claim for lack of informed consent and precluding expert testimony about the types of treatment available to the plaintiff's decedent.

In the New Jersey Law Journal's most recent Superior Court Judicial Survey, published last fall, Rand was ranked 16th out of 18 judges in the Morris-Sussex vicinage in the category of proper application of procedure and evidence rules, with a score of 7.16 on a 1-to-10 scale. His overall rating of 7.39 was also 16th out of 18 judges in the vicinage.

(Published by Law - September 13, 2010)