Social Media Tips For Personal Injury Victims
By William H. Finlay, Esq.- Member, PA, NJ, and NC Bars (Ret.)
Social media have become a big part of the way both plaintiff and defense lawyers in personal injury cases manage claims. For plaintiffs, they can be a problem even before a lawyer meets with his prospective clients until after there’s a verdict. They also affect criminal and family law litigators. They are fraught with danger for the oblivious lawyer or his client. Some plaintiff firms have even taken to adding messages on their websites warning prospective clients against posting any of the types of information discussed below.
By some estimates, there are nearly four billion social media account users worldwide. Facebook alone boasts over 1.2 billion users worldwide. That means roughly half the human population of the world uses a means of communication that barely existed twenty years ago. The attraction is clear – having a presence on social media allows you to connect with friends and colleagues, share updates about your life, hear about events in friends’ lives and promote a business or a cause you support. As a user of Facebook, Instagram, Twitter or other sites, you possess the ability to communicate a vast amount of otherwise private information about yourself.
Most often, of course, social media posts are harmless or even helpful. When you’ve been injured in an accident and have made a personal injury claim, however, you may unwittingly disclose information about yourself that can come back to haunt you. As you’ll see from the discussion below, you need to be very careful about your social medic use when you have a personal injury claim.
Surveillance and Investigation By Defendants’ Attorneys
In the 1966 movie The Fortune Cookie, a cameraman falsely claims to be confined to a wheelchair after a sideline collision with a football player. He sues the team for millions of dollars in damages. If you’ve seen the film, you may recall that there are several scenes in which a private investigator tries to get photographs of the plaintiff doing ordinary things (such as walking) that show his “injuries” are bogus. The plaintiff and his shady lawyer are eventually found out and the lawsuit collapses.
With an eye toward discrediting your case, defense lawyers and investigators still do this sort of surveillance in some cases. In 21st century life, however, they will also routinely examine your social media posts for evidence that shows you’re not as seriously injured as you claim (or perhaps not at all). Indeed, the use of social media has become so commonplace that a defense attorney who fails to review your activity may very well have committed an ethical violation by failing to zealously represent his client.
The obvious (and most extreme) hypothetical example is that of a Fortune Cookie – type faker who claims to be a paraplegic due to an accident but posts pictures of himself strolling on the beach in Cancun.
Naturally, we’d never suggest you fake any injury – that’s fraud. If it’s discovered, you will lose your case and you could even go to jail.
But even when your injuries are both genuine and serious, pictures and other information posted on your Facebook account can be used against you. That picture of you walking on the beach? In reality, it was taken months before your accident, but you just got around to posting it the other day. You’ll need to explain all that to a judge or jury, and they may or may not believe you. Even a harmless photo of you will usually contain geolocation data indicating where it was taken. This can reveal a lot of information about how and where you spend your days and can hurt your case.
It’s also not only your own content that’s in play. Insurance and law firm investigators will look for any posts, photos or videos that mention or tag you. This includes anything a friend or follower posts in which you’re mentioned or pictured.
Among things defendants’ representatives will look for are the following:
- Pictures that show you smiling or engaged in activities that wouldn’t be possible if your injuries were as serious as you claim
- Posts that show whether you maintain an active social life despite the accident
- Locations you have visited since the accident, including resort or tourist destinations
- Whether you’ve shared any information about the accident or your injuries with any friends or followers
- Whether you may be involved in activities that are likely to aggravate your injuries
Using Social Media Posts Against You
It could be that there’s a defense claim that you were partly or solely at fault in an accident or whether your injuries were actually caused by the accident or already existed. Social media posts contradicting your claim of fault make great ammunition for the defense.
Let’s assume, however, that the jury concludes that you weren’t at fault in the accident and that your injuries are a direct (or “proximate”) result. That leaves only the question of how serious the harm is and how much compensation you’re due.
Naturally, the defendant will try to show that you’re exaggerating the severity of your injuries. In addition to medical reports and any other admissible evidence, the defendant’s lawyers will try to find helpful social media posts. Anything posted to a social media account (remember, this can be posted by friends or followers, too) that seems to show your injuries aren’t as bad as you say can and will be used against you.
For example, posts may show that you aren’t suffering from the sort of anxiety, depression, or other distress that an accident victim can usually be expected to exhibit. That picture of you smiling and having beers with friends or a post about seeing your kid score the winning soccer goal can be very useful to the defense.
Social media posts may not in and of themselves prove anything, but poorly thought out ones will raise suspicions and lead the defendant to inquire further through the case evaluation and discovery process.
Social Media Information Is Usually Not Confidential
Because of the attorney-client privilege, the information you share with your attorney, as well as your lawyer’s advice, generally remains confidential and off-limits to the defense. This includes both oral and written (think e-mail) communications in either direction.
However, there are some situations in which the privilege doesn’t apply. The one that’s most common in the social media context is when you’ve shared the same information with others. In the past, this usually meant divulging the information in a conversation. Although this disclosure removed the protection of the privilege, it was uncommon for the defense to learn of it unless it happened to do so through investigation or in a deposition. Moreover, the disclosure was generally limited to a small number of people.
It’s essential to remember that virtually any information posted on social media is accessible to, among many others, the defendant’s lawyers, even if you try to limit access by sharing only with certain people or by marking it as confidential. A typical discovery request now includes a demand for a list of the plaintiff’s accounts and login credentials.
Things to avoid putting on your Facebook or other social media account include:
- Comments or speculation about your case or your injuries (“It was really my own fault” or “I wasn’t hurt as badly as I could have been”)
- Photos or videos about the accident, your injuries or your treatment
- What witnesses to the accident may have seen or heard
- How much money you expect to receive or what you plan to do with it
- Any information you may have shared with your attorney
If you share confidential information with anyone other than your lawyer, that information is no longer protected from disclosure. That means the defendant’s lawyers can find out about it and use it to attack your claim.
If you’re involved in an accident, the most important thing you can do is consult with your attorney about your social media accounts.
- Stop all social media activity as soon as you are involved in an accident
- Consider suspending all your social media accounts
- Set all your social media privacy settings to the highest level of privacy available through each platform
- Don’t add any new social media accounts, friends or followers
- Don’t start following any new people or accounts
- Be sure that your friends and followers know not to comment on or share any of your posts, mention you in their own posts or tag you in photos
- Tell your attorney about all your social media accounts and follow his or her advice about making any changes to them
- Speak to your lawyer about whether you can delete or change posts, photos or other information. Generally, that’s not permissible if you’ve already filed suit and the information has been discovered by the defendant’s lawyers
- Also, talk to your lawyer about whether you can safely disable the geolocation capabilities on your smartphone
The lesson here is pretty simple: when in doubt, don’t post any information relating to your lawsuit. Better still, “go dark” or close your accounts until the case is over. You can always reopen them or create new ones later on.
Social Media Posts Can Be Used In Court
It’s rare that a single post on a social media site will completely sink your accident case. However, a social media post is considered a statement. Technically a damaging one is called a “declaration against interest”. It can and probably will be introduced in court, whether or not you ever testify in person. Remember, too that once damaging information is posted, you generally can’t remove it. If it’s discovered that you’ve done so (with or without the advice of counsel) this can hurt your case in the eyes of the jury and possibly result in court-imposed sanctions.
But Social Media Can Also Be Used to Help Your Case…
So far we’ve talked about how defendants’ lawyers can use social media to undercut a plaintiff’s case. Indeed, there have sprung up in recent years a number of companies that promise to assist attorneys in locating damaging photographs or other incriminating statements online.
But the tide may be turning. It’s becoming more and more common for plaintiffs’ lawyers to help their clients use social media to come across more favorably in personal injury litigation. Again, we’re not talking about fabricating information or falsifying your injuries, but posts that show your actual condition in the best light will be available to defense counsel just as freely as the ones that hurt your case.
Conclusion
Let common sense be your guide, and remember that a jury isn’t made up of lawyers. You don’t need to be one to see how a jury will see your social media history.
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