October 1, 2018 through February 7, 2019

Setting up tech for the Ride the Ducks Trial

Two weeks after Liam is born we start the Ride the Ducks Aurora Bridge trial. In the months leading up to the trial stop writing or discussing the case publicly. This includes to the media, to social media, to this blog.

The jurors will be instructed not to read, watch, or listen to anything about this case. They will not be reading this blog for example. So it is not quite clear how pretrial publicity especially in a civil case can be prejudicial if the lawyers talk to the media which the jurors will not be reading.

Rather than debate the issue look to The Rules of Professional Conduct (RPC) 3.6. It is paraphrased in relevant part:

TRIAL PUBLICITY (a) A lawyer who is participating in a lawsuit shall not make an extrajudicial statement that they know or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing a trial. (b) Except a lawyer may state: (1) the claim, defense involved and, the identity of the parties; (2) information contained in a public record; (4) the scheduling or result of any step in litigation; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest. (c) Also a lawyer may make a mitigation statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or their client.

The Bar Association has published comments on the rule. Without going into them all here is the first:

[1] It is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression. Preserving the right to a fair trial necessarily entails some curtailment of the information that may be disseminated about a party prior to trial, particularly where trial by jury is involved. If there were no such limits, the result would be the practical nullification of the protective effect of the rules of forensic decorum and the exclusionary rules of evidence. On the other hand, there are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy.

The rule does not apply however to private communications. There is no rule repressing freedom of speech that is not transmitted openly into the public realm. That has zero chance of being inadvertently stumbled upon by a juror.

After each trial day, I write a trial diary. It is a cathartic exercise. Finish the day. So can open the chapter to the next day. The four month trial means I write 62 days of trial diaries plus two entries covering the 9 days when the jury deliberates. I will share some excerpts of these trial diaries in the blog.