Plaintiff's Illinois Appellate Court Rules Plaintiff's Attorneys Tried to Influence Jury Through Social Media

A recent opinion from the Appellate Court of Illinois, First District, Cynthia Kroft and Mark Kroft v. Viper Trans, et al, 2025 IL App (1^st) 240220, addresses when counsel’s use of social media may go too far.

Case Background

Plaintiff Cindy Kroft suffered catastrophic injuries in a rear-end collision with a tractor-trailer owned by Defendant PR Rental and driven by Defendant Radisavljevic. At the time of the accident, the tractor-trailer was leased to Defendant Viper Trans. No defendant disputed liability for negligence nor the injuries Plaintiff suffered as a result of the collision. The case went to trial twice on only the issue of the amount of Plaintiff’s compensatory damages, including the need for future medical care. Plaintiff’s stipulated medical bills totaled more than $1,191,000, with an additional $1.3 to $2 million in lost earning capacity. Plaintiff presented a future life-care plan valued at $9.4 million, while the Defendants presented a life-care plan valued at $1.83 million.

First Trial: Claims of Inflammatory Conduct by Plaintiffs’ Counsel

The first trial resulted in a jury verdict of slightly over $43 million. In post-trial motions, Defendants argued that Plaintiffs’ counsel had repeatedly violated various rulings on motions in limine and had engaged in improper ad hominem attacks against the Defendants and their attorneys.

The trial court found that despite an admitted-liability trial in which the court had granted a motion in limine barring evidence about the facts of the collision, Plaintiffs’ counsel repeatedly tried to introduce evidence that had nothing to do with damages. The trial court also found that Plaintiffs’ counsel had repeatedly referred to Defendants’ attorneys as hypocrites and “two-faced,” asserted that the Defendants were refusing to take responsibility, and continued to talk about brain injuries even though no evidence of brain injury had been disclosed.

The trial court concluded that Plaintiffs’ counsel’s comments were “premeditated and were intended to get more money… by bringing up alleged issues that were not issues in the case and certainly not relevant to the issues in the case.” The trial court granted a new trial on all issues.

Second Trial: Juror Exposure to Blog and Social Media Posts

During jury selection for the second trial, several potential jurors mentioned they recognized one of the Plaintiffs’ attorneys, Kenneth J. Allen, from his TV commercials.

On the morning of day 2 of jury selection, a post was published to the blog hosted on the website of the Plaintiffs’ attorneys’ law firm and also to the firm’s public Facebook page. The blog post indicated it was being posted by Kenneth J. Allen and was titled “What Jurors Should Know But Don’t.” The text included assertions that “jurors are never told about appeals or when a new trial is ordered” and that a new trial had recently been ordered in Ms. Kroft’s case.

The post included a quote attributed to Mr. Allen asserting that, “[w]hile it’s sad the former Judge rejected the first jury’s verdict and threw out all their hard work, the case has been reassigned to a new, tremendous trial judge and we’re confident the new trial will be a fair one.” Mr. Allen went on to assert that, “Actually, this decision is a blessing as Cindy’s condition has gotten much worse since the first trial” and “$43 million now doesn’t come close to making up for the grievous human losses and economic harms caused by defendants’ inexcusable negligence.”

The post explained that Plaintiff had a newly-diagnosed spinal trauma which would now require surgery which “often results in complete quadriplegia” and that Plaintiff may now “become totally paralyzed and unable to feel or move any part of her body from the chest down.”

The post went on to attribute a quote to co-counsel Otto Shragel that, “[O]nce the new jury hears about Cindy’s syrinx and her brain damage—both were kept from the jury at the last trial—we expect the jury to return a fair and reasonable verdict in the range closer to $100 million. That would serve justice.”

The post asserted jurors are never told that all expenses paid by Medicare, Medicaid and private health insurance must be repaid after trial before plaintiffs receive any money, are never told that lawyer’s fees and expenses of one-third to one-half of the jury’s verdict are taken out of plaintiff’s share, and that if a prior settlement has been reached with another party, that settlement is deducted from the verdict. Defendants’ attorneys were not made aware of these posts until several days later. On the fourth day of trial, the Defendants moved for a mistrial due to the fact that one of the insurance company representatives heard one juror say the word “retrial” to another juror during a side bar. After a hearing, the trial court concluded that merely overhearing the word “retrial” did not provide it with enough information to conclude that anything improper had occurred.

The following morning, Defendants made their second motion for mistrial after they discovered the existence of the Plaintiffs’ attorneys’ social media posts, which had at that point been posted for 10 days. They argued that the social media posts were a deliberate and premeditated effort by the Plaintiffs’ attorneys to influence the jury’s verdict, particularly through misleading statements about what had occurred at the first trial. Plaintiffs’ attorneys responded that they not seen the social media posts prior to that morning and that someone else had authored the blog post on their firm website.

The trial court then brought the jury into the courtroom to address them as a group. The court reminded the jurors that they had been told it was very important that no one discuss the case with anyone else and that no online exploration or research was to be done. The court asked the group if anyone had done any investigation about the lawyers, the case, the parties, the judge, or any other event, past or present, involving the case. There was no response from any juror, and the court denied the second motion for mistrial but ordered the Plaintiffs’ attorney to immediately have the posts taken down.

The Defendants renewed the motion for mistrial after closing arguments, and the trial court again denied the motion. The jury then returned a verdict on all claims in favor the Plaintiffs, awarding a total of $43,825,000, which was almost precisely the amount mentioned in the social media posts ($43,000,000). The trial court denied all post-trial motions, stating that while it does not condone the posting of the blog article and believes it was highly inappropriate, the jury received multiple admonishments from the court against the use of any social media regarding the trial, the attorneys, or the parties, and, in the absence of evidence to the contrary, the court would assume the jury followed the admonishments.

Appellate Court’s Analysis and Ruling

On appeal, the First District looked not only to decisional law for guidance, but also to the Illinois Rules of Professional Conduct. Specifically, the appellate court noted that Rule 3.6(a) provides in relevant part, “A lawyer who is participating *** in the *** 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 agreed with the Defendants that the trial court abused its discretion in denying their motions for mistrial. “We reach this conclusion based upon the serious effort that was made by the plaintiffs’ attorneys during trial to reach the jury and influence its verdict by communicating information that was highly prejudicial to the defendants’ right to a fair trial. We also find a clear abuse of discretion in the manner by which the trial court investigated whether the social media posts had in fact come to the attention of any juror, the results of which served as the basis for its denial of the defendants’ motion for mistrial.”

While the appellate court noted multiple factors led it to believe that this was an intentional effort by the Plaintiffs’ attorneys to have these posts reach the jury, it noted “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.”

Notably, the posts used the precise search terms that a person interested in this case would most likely know to search on the internet, including the full case caption and docket number. The sites where the posts were published were sites that a person interested in this case would likely look to for information, i.e., the website and Facebook page of the Plaintiffs’ attorneys’ law firm. Also, the timing of the posts’ publication (the second and final day of jury selection) and the fact that they remained publicly accessible through most of the trial was suspicious and seemed highly coincidental.

Finally, the headline (“What Jurors Should Know But Don’t”) and text of the posts were blatantly directed toward grabbing the attention specifically of persons serving as jurors. Based on these factors, the appellate court concluded that these social media posts constituted a real and serious effort to reach the jurors deciding the case and an attempt to have the jury return an inflated verdict by circumventing rules of evidence and trial procedure in place to ensure a fair trial.

Outcome and Remand

Given the serious attorney misconduct that occurred, the appellate court rejected the argument that it must presume the jurors followed the instructions and admonishments 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 appellate court also found 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. The investigation was inadequate in that it was conducted in a highly suggestive manner, which primed the jurors away from being publicly forthcoming about whether the social media posts had in fact come to their attention.

Most troubling was that the trial court twice referred to such conduct as a “violation” and immediately prior to posing its question stated that it was his assumption that nobody had violated the instructions. The trial court, however, was not investigating suspected juror misconduct, but rather attorney misconduct. Thus, it was not a reasonable or judicious means of investigation for the trial court to repeatedly emphasize that importance of jurors not investigating the case on the internet or to refer to this as a “violation.”

Finally, the trial court also abused its discretion in collectively inquiring of the jurors as a group in open court. Individual question in chambers was the only reasonable method that could have ensured with requisite certainty that no juror had become aware of the social media posts.