During the re-trial of a personal injury case arising out of an automobile collision, plaintiff’s counsel published social media posts entitled What Jurors Should Know But Don’t, in which they discussed the case and various other matters about which they claimed the jury was being improperly “kept in the dark.” Although the trial court, given the cautioning instructions and in the absence of any affirmative evidence that the jurors reviewed or were influenced by the information in question, allowed the verdict to stand, it was reversed by the Illinois Court of Appeal.

The Court of Appeal observed, among other things, that the Official Comments to Rule 3.6 recognize that there are “certain subjects that would pose a serious and imminent threat to the fairness of a proceeding, particularly when they refer to a civil matter triable to a jury.” This includes “information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial.”  In this particular case, the Court concluded that the conduct was an “intentional effort by the plaintiffs’ attorneys to have these posts somehow reach the jury. However, even if this was not intentional, the publication of these posts during trial certainly demonstrates a reckless disregard by the plaintiffs’ attorneys for the likelihood that jurors deciding this case could have been exposed to information about it that was inaccurate, misleading, and in contravention of well-established rules governing the information received by juries during personal injury trials.”

After recounting several indications of intent, the Court concludes that: “these posts go beyond an attempt to circumvent the well-established rules concerning information that a jury may receive in the courtroom. The posts also contain inaccurate and misleading information, specifically the statement that the new jury would hear evidence about the plaintiff’s syrinx and her brain damage that were kept from the jury at the last trial. To a layperson reading the post, the implication is that the keeping of this evidence from the jury was wrongful and was the reason for the new trial. This statement is misleading, because the record discloses that neither of these injuries were ‘kept’ from the first jury. The syrinx had not been diagnosed at the time of the first trial, and thus it could not have been discussed. And any evidence concerning the plaintiff’s brain atrophy was barred at the first trial on the basis that the plaintiffs’ attorneys failed to disclose medical testimony to support it. Thus, the ordering of a new trial had nothing to do with the first jury not hearing this evidence. Instead, the basis for the trial court’s granting of the new trial were multiple prejudicial statements made by plaintiffs’ counsel during closing argument and his attempts to introduce evidence of brain injury despite the failure to properly disclose this testimony. The social media posts, however, leave the reader with the inaccurate impression that the new trial had to do with the exclusion of evidence of the syrinx and brain damage, not the misconduct of plaintiffs’ counsel.

“One need only read Illinois Professional Conduct Rule 3.6(a) to understand that it is highly improper for attorneys trying a case to disseminate statements of the above nature via social media during trial. Again, that rule of professional conduct provides that a lawyer participating in litigation ‘shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and would pose a serious and imminent threat to the fairness of an adjudicative proceeding in the matter.’ …. Here, it is beyond dispute that the plaintiffs’ attorneys reasonably should have known that the social media posts they were publishing during trial included an egregious amount of information that would seriously threaten the fairness of this trial and the impartiality of the jury if such information was disclosed to the jurors. It would seem that the disclosure of any single statement discussed in the preceding paragraphs might well violate the letter or spirit of Illinois Professional Conduct Rule 3.6(a); but in totality, the extent of the prejudicial information that the plaintiffs’ attorneys included in these posts is shocking to this court and is certainly in violation of that rule….

“The plaintiffs’ argument is that regardless of how significant we may consider the attorney misconduct that occurred in this case, the determinative factor is nevertheless that the defendants are unable to show that any juror ever saw the posts. Asserting that this case merely presents the age-old question of whether the jury was exposed to extraneous information, the plaintiffs argue that overturning the verdict requires the defendants to prove that the posts reached the jury and may have influenced its verdict…. We reject the plaintiffs’ argument that the controlling factor in this case is that the defendants did not show that any juror saw the posts. First, given the serious attorney misconduct that occurred here, we do not find it appropriate to decide this case merely by resorting to the presumption that jurors follow the instructions given by the trial court. It strikes us the ability to later make this argument may have fostered a belief on the part of the plaintiffs’ attorneys that they could publish these social media posts with impunity in the hope that somehow one or more jurors would not actually follow the court’s instruction not to research this case on the Internet or social media. The rule that juries are presumed to follow instructions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of all parties to litigation. We further find the presumption to be inapplicable because the record is wholly silent as to the exact time on July 7, 2023, that the posts were published relative the time, which was sometime midday, when the jurors were sworn and given the instruction not to look at social media or the Internet. Accordingly, these posts may well have existed throughout jury selection that morning, prior to the empaneled jury’s receipt of this instruction from the trial court.  Second, and more significantly, we find a clear abuse of discretion by the trial court in the manner by which it investigated and determined that the social media posts at issue had not come to the attention of any jurors….  We emphasize that the court here was not investigating suspected juror misconduct. It was investigating whether prejudice had resulted from attorney misconduct. Specifically, it was investigating the realistic possibility that attorneys trying the case before it had engaged in jury tampering. Thus, given the importance of getting to the truth of whether any jurors had seen these social media posts, it was not a reasonable or judicious means of investigation for the trial court to repeatedly emphasize the importance of jurors not investigating the case on the Internet or to refer to this as a ‘violation’ of their oaths as jurors immediately prior to asking them to publicly volunteer whether they had done this or knew about it.”

 

Kroft v. Viper Trans, Inc., No.24-0220, 2025 IL App (1st) 240220 (March 31, 2025).