An Illinois appellate court recently reversed a $43 million jury verdict in a personal injury case (Kroft v. Viper Trans, Inc.)1 involving an automobile collision, remanding the case for another trial—now the third—after the plaintiffs’ counsel posted potentially misleading information to its website and Facebook. The content in question? A blog post titled “What Jurors Should Know But Don’t,” in which plaintiffs’ attorneys not only claimed that jury members in the first trial were “kept in the dark,” but also discussed the judge who presided over the case, their opposing counsel, and their clients’ worsening condition—violating Illinois Professional Conduct Rule 3.6(a).
Background
On July 7, 2023, the second and final day of jury selection in the case’s retrial, plaintiffs’ counsel published a blog post on social media stating that the former judge “rejected the first jury’s verdict and threw out all their hard work.” This time, though, they indicated that they were confident that the new trial would be fair.
Additionally, the post included details of their client’s medical conditions, stating that—in addition to brain trauma—she had developed a rare form of spinal cord trauma, called a syrinx, that could leave her completely paralyzed. The attorneys went on to claim that they were unable to present these facts to the first jury, which could have resulted in a verdict larger than the first jury’s $43 million awarded in the original trial, stating that they hoped this jury would return with a new verdict closer to $100 million.
Five days later, the defendants’ counsel discovered the blog and filed a motion for mistrial. The post, they said, was easily accessible with a simple Google search of the plaintiff’s name. The judge did not decide on the motion at the time but reminded the jurors that they were not to Google anyone involved in the case or conduct any outside investigation other than what they heard in the courtroom. The defendant’s attorneys filed a second motion for mistrial the following day. The motion was denied; however, the plaintiffs were ordered to remove the post from social media.
The jury returned another $43.8 million verdict in favor of the plaintiffs. The defendants argued that since that specific amount had been disclosed in the blog post, it supported their claim that the jury had been influenced by the social media content. The defendants filed posttrial motions, claiming they had been deprived of a fair trial.
The trial court, given its cautionary 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.
Illinois Court of Appeal’s Reversal
After citing previous cases involving attorney misconduct, justices of the First District Appellate Court of Illinois concluded that the posts in question “go beyond an attempt to circumvent the well-established rules concerning information that a jury may receive in the courtroom.”
Moreover, the posts also contained inaccurate and misleading information. In particular, plaintiffs’ counsel stated that the new jury would hear evidence about their client’s syrinx and brain damage that was “kept” from the jury at the last trial. The justices went on to say that:
“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.”
Additionally, the Court referred to Illinois Professional Conduct Rule 3.6, which outlines the provisions lawyers are to uphold regarding trial publicity. Rule 3.6(a) states that, “A lawyer who is participating or has participated in the investigation or litigation of a matter 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.”
The Appellate Court found that the trial court’s denial of the defendants’ motions for mistrial was a result of inadequate investigation and a clear abuse of discretion: “The court here was not investigating suspected juror misconduct,” the Court of Appeal emphasized. “It was investigating whether prejudice had resulted from attorney misconduct.”
Therefore, it was not reasonable 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.” The justices accordingly vacated the verdict and ordered the case for a third trial.
Conclusion
An attorney’s discussion of ongoing proceedings on social media can intentionally or unintentionally reach jurors and pose a risk of influencing them. This includes information that the lawyer knows, or reasonably should know, would not be admissible as evidence. And while the Appellate Court concluded that the plaintiffs’ counsel in this case acted intentionally, the situation presents a lesson for those who might not actively choose to behave in this manner, as the Rule includes a “reasonably should know” standard, and therefore also applies to attorneys who act with “reckless disregard.” Setting aside the issues of attorney misconduct, an impartial jury is the only way to ensure a fair trial.
1 Kroft v. Viper Trans, Inc., No.24-0220, 2025 IL App (1st) 240220 (March 31, 2025).
