If you are currently fighting a personal injury lawsuit, it is vital to maintain a certain level of decorum when posting on social media. Social media can damage your case significantly and even give the opposing attorney an upper hand. Contrarily, being thoughtful and responsible on social media profiles can help your lawyer build your case.
Do not post about your personal injury lawsuit!
The biggest rule for being in a personal injury lawsuit is to not post ANYTHING about your case online. This silence can help reduce the information the other side has to use against you. Since you are not a lawyer, you will likely not know what to say online that will not count against you.
Minimize your social media reach.
If possible, make your accounts private or set to friends only. Privacy is valuable during your case and will help prevent anyone from seeing your posts that could hurt your case. Do not add any new friends or allow any new followers until after your case. Insurance adjusters and private investigators are notorious for finding your social media profiles and adding you as a friend to get a deeper look into your life.
Do not post about your injury!
If you do post on social media, do not mention your injury that is included in the lawsuit. Any updates about your injury, medical treatments, surgeries, or physical therapy can be taken out of context and potentially used against you. Even a simple “feeling good today!” can be taken out of context to prove you were not truly affected by your injuries in the ways you claim.
Do not post any travel photos!
Do not post anything about physical movement or travel on your profiles! It can be used against you in court if it appears you are well enough to travel and take a vacation.
Encourage family and friends to do the same!
Personal injury lawsuits are serious business. Do not let family or friends post anything about you. They should follow the same rules you are following.
Impact of Social Media on Personal Injury Law
Social media platforms are becoming an important factor in the outcomes of some personal injury lawsuits. Because of that impact, it is critical that plaintiffs come to terms with the way in which social media can impact their cases.
The Explosion in Social Media Usage
As of 2015, there were a reported 3.17 billion people around the world actively using the internet – 200 million more than had access to cyberspace just one year prior. Of those, roughly 2.3 billion connected individuals maintained active social media accounts. Just as important, about 12 new social media users are becoming active on those platforms each and every second, adding an estimated one million new social media users to the total each day.
Facebook alone has more than 1.6 billion users. If it were a country, it would be the most populous on the planet, far exceeding the populations of nations such as China and India. YouTube, WeChat, and WhatsApp all have between 900 million and a billion users each. That’s billions of people posting each and every day, with many of them publishing the most intimate details of their lives online. And while that might seem relatively harmless on its face, all of that activity can prove detrimental when brought to light in any sort of personal injury lawsuit proceeding.
Social Media Usage in Court
Years ago, social media may have seen as whimsical and insignificant in the real world. Today, however, it is often at the forefront of technology, information, and politics. In fact, many court cases have allowed social media posts and profiles to be admitted as evidence. Yes, you read that correctly. Needless to say, this has led to social media playing a major role in the decisions of the courts on multiple occasions.
Social media such as Instagram or Facebook can be used in court now. With this exception comes several nuances and challenges involved in getting them admitted. Even once it has been accepted as evidence, it is not a surefire way to make a case. It certainly is not a surefire way to prove innocence or guilt either. Many factors must be taken into consideration when using social media in this manner.
How social media can be admitted in court
Public posts can generally be admitted as evidence without too much pushback. This means that if someone makes a post on Facebook, it can be admitted as evidence. Tweets sent out via Twitter publically can also be admitted as evidence. Admitted as evidence, provided if the court determines that it is relevant to the case. However, there must be a reason to believe that the public profile is authentic. This also means a reason to believe that the posts were made by the involved party. The relevance of the post may also be difficult to agree on. This is because social media posts aren’t necessarily considered to be official statements. Social media posts aren’t always meant to be taken seriously either.
Social media is a little tricky. It’s especially tricky when it comes to obtaining information. Particularly when obtaining from the private portions of a user’s social media account. This is when it becomes a bit difficult. Lawyers can try to subpoena data from media companies. This is difficult as they will most likely cite the Stored Communications Act. Citing the act provides a reason not to share their client’s information. In certain situations, social media companies have shown more willingness to cooperate. More willingness to cooperate with the authorities is often seen more with criminal cases.
How social media can be used as evidence
As mentioned, public posts can often be admitted as evidence. Someone could possibly use social media to physically threaten another person. This may be used as proof of their violent nature or intentions. Thus, making it admissible in court. Essentially, any public post is recorded information. This means it can be used as evidence as long as it can be reasonably believed to have come from the specific individual.
This isn’t limited to text posts, however. Photos that are posted on social media can be used as evidence as well. A picture could show an individual with the incriminating evidence. Evidence such as being in possession of drugs, weapons, or other illegal items. This can certainly be used against them in court. Social media photos have been used in many court cases.
Bradley v. State
Social media has already helped reach verdicts in some cases. One early instance of social media being used as evidence took place in Houston, Texas. This particular case was a criminal case. Michael Paul Bradley and his brother robbed a carwash at gunpoint. They demanded that the victim hand over his possessions. Along with his possessions, his car keys were demanded. Although the victim was put in a difficult situation, he was able to remember the faces of the perps. The victim was able to identify the perpetrators. He identified Bradley and his brother through the use of Facebook photos. The court deemed the evidence to be satisfactory. Bradley did try to appeal the decision. This didn’t help him though. The decision was upheld. The Facebook photos were considered a key part of the original decision.
Can Social Media Ruin My Claim?
If you’ve been injured in an accident and are currently seeking compensation from an insurance company or another liable party, chances are that you probably tend to share details about the case and your injuries with family, friends, and others. We live in an age of shared experiences, after all, as social media makes it even easier than ever for all of us to do what we see reality television stars do on a daily basis: document even the most intimate details of our lives online and share them with the world. For anyone involved in a personal injury case, however, this can be a serious mistake. If you’re one of the 2.2 billion people using these social platforms, then you need to know how social media can ruin your personal injury case!
Social Media Privacy Not What You Think
The problem is that most people just assume that their social media accounts are never going to be seen by anyone other than their invited friends and family. Many litigants have even made that argument in courts around the country, suggesting that their right to privacy should trump their legal opponents’ right to discovery. For example, some litigants have noted that their private postings to Facebook are only viewable by their designated “friends” and thus should be considered as “not public.”
Those arguments have been routinely rejected by judges who have found that the very act of sharing information online negates any reasonable expectation for privacy where shared content is concerned. As a result, courts evaluate the discoverability of a litigants’ social media content using standard criteria and without respect to any imagined privacy concerns. Relevancy to the case is often the determining factor. That will certainly come as a shock to the 72% of adults in the United States who regularly use the Facebook platform.
How Can Your Social Media Harm Your Case?
Think about the type of posts you generally place on your social media accounts? Do you typically talk about how you’re just lying around doing nothing? Do you post pictures of you looking miserable in a chair? Or do you do what most people do on social media and discuss the exciting or interesting things that you’ve done? Chances are that your posts trend toward interesting material and that your photos are usually something other than pictures of you writhing in pain.
Here’s the problem: if you do any of the following things, you could be giving the defendant in your case the ammunition he needs to defeat or mitigate your claims:
- Do you post happy pictures of yourself?
- Are you posting detailed accounts of how you feel each day?
- Are you using social media to keep everyone updated about your recovery efforts?
- Are there pictures of you out with friends or family, or engaged in physical activity of some sort?
- Were you so injured that you cannot even sit at your work desk, but still somehow find a way to post online throughout the day?
- Are you writing about your personal injury case on a regular basis?
If you’re engaged in any of those activities, you should ask yourself how those things would look to a jury of your peers. Is there a jury that would believe that you are so injured that you deserve compensation when they can see pictures of you racing through the snow on a snowmobile or partying at the local club? Will they believe you if you are writing about nothing but happy things every day? Not a chance. All of that oversharing will do nothing but provide the defense with new and controversial information that can be used to create a negative impression of you in the mind of the jurors.
Thus, opposing counsel could, after seeing such publicly available postings, motion for discovery access to other Facebook posts that may not be so readily accessible to the public. That is a key point to remember. In most instances, the presence of such posts on your account page will meet the courts’ legal threshold for ordering you to provide greater access to your Facebook account and its content. If publicly available information on your account seems to contradict your legal claims, discovery will usually be allowed.
The real harm, however, doesn’t come from the defense obtaining your posts, but from the jury’s interpretation of their meaning. If your claim suggests that you’ve suffered severe injuries as a result of the defense’s negligence and the jury is presented with evidence suggesting that you enjoy a variety of physical activities and remain generally active, they are unlikely to see you as a truly injured party. Your posts could end up making the defense’s entire argument against compensation.
Reining in Your Social Media
Statistics show that roughly 70% of Facebook users log into their account on a daily basis. If you’re among that number, it might be tough to resist the temptation to put your account on hold in the wake of a personal injury, but you need to do so. And it’s not just Facebook. According to Pew, 52% of Americans use at least two social media sites regularly. To protect your legal interests, you should consider setting all social media aside the moment you know that you intend to file a legal action for compensation.
Here’s the thing you must remember in this age of instant communication and constant social interaction: you have to assume that every single word or image you share online is eventually going to be seen by defense counsel. Moreover, your social media accounts may provide the defense with a list of friends and associates whose accounts may be of interest as well, particularly if your injuries are a hot topic of discussion.
To prevent adverse effects from your use of social media, your best course of action is to simply forgo it altogether as your litigation proceeds. Instruct friends and family to avoid conversations online about your injuries or your case, and keep as much as you can to yourself. Most importantly, discuss all of these matters with your attorney and carefully follow any advice that he or she offers on the subject. Remember, there will be plenty of time to catch up with those social media accounts once your case is over.
Social Media Use After Your Accident
As you are surely aware, the use of social media has exploded over the course of the past five to ten years. It has become a major source of news and communication for people all across the globe. For many, it is an easy way to share information with their loved ones, to keep up with their friends and families, and to stay plugged into news about topics they are interested in.
What you may not realize is that this information is readily available and can usually be found with a simple search. It is difficult to remain truly anonymous in the world today. Social media has become such an integral part of people’s daily routine and activities that many don’t stop to think who may be interested in it. You may be surprised to find out how quickly and easily an insurance company or attorney for the adverse party in an automobile collision can find your social media platforms and begin to mine them for information.
We generally advise our clients to stay off of social media completely following their accident. This keeps the opposing side from being able to take a peek into your personal life and trying to use your publicly posted information against you. For example, let’s say you are in a wreck and are claiming injuries. If you post some photographs of you posing on the beach one week later on a tropical vacation, this will be used as evidence to prove that your injuries are not that severe. You may have been in excruciating pain right before and after the photo, but all the world will see is you smiling and enjoying life, leading a potential jury to think that your injuries aren’t as severe as they truly are.
The safest bet is to avoid posting on social media entirely. If you truly feel the need to stay engaged, the less information that you put out into the world, the better. If your child does well at a soccer game, that is information that likely will not harm your claim. If you win some kind of award, that is likely an acceptable accomplishment to share. It all depends on the circumstances and facts particular to your claim.
It is important to have an experienced attorney on your side for matters such as this. An experienced attorney can help guide you through the process and, if you had any questions about what may or may not be appropriate to share, they can provide you feedback and let you know whether or not an action is likely to be harmful to your case. Something that may seem harmless could easily come back later to diminish the value of your claim.
A Source of Information for the Defense
While you might be well-justified in thinking that your personal social media life is your own business, the courts and defense counsel will typically have an altogether different opinion on the matter. The fact is that your lawsuit represents a potential loss for the defendant and his insurers. No matter how justified your case might be, the people on the other side of your lawsuit have every reason in the world to want to disprove your claim. It is only natural that they would seek to use any information they can glean in their efforts to evade responsibility and liability for your losses.
The problem with social media is that most people just assume that anything they post on social media sites like Facebook or Instagram are private postings accessible only to their friends and followers. That’s why someone who suffers an injury today might feel perfectly comfortable posting a Facebook account of the great time they had at their six-year-old nephew’s birthday party next week. From their perspective, the injury and their afternoon at the party are two wholly separate things.
For a competent defense attorney, however, that Facebook post and other social media messages, photos, or videos may just provide the physical evidence needed to cast doubt on the severity of that plaintiff’s injuries. And that doubt may be all that is needed to undercut the actual damages that lie at the heart of that particular tort litigation. After all, if the defense can successfully argue that the plaintiff’s injuries have been overstated, then the very question of damages can be called into question – and that can in turn make the issue of liability a moot question. For if there are no real damages, then the very reason for the lawsuit fades away.
Social Media Can Impact You More than You Know
Plaintiffs need to remember that we all live in the digital age now. Everything you post online can and often is seen by more than just the people in your social network. For example, just consider all of the many employees who have lost their jobs in recent years due to the nature of various social media postings they shared with the world.
Or consider the case of the young woman whose seemingly happy demeanor in Facebook pictures was used by the defendants in a civil case to argue that she was not, as she claimed, suffering from emotional distress and “loss of enjoyment of life.” Nor is this an isolated incident. Facebook is now among the most commonly researched resources for defense attorneys as they try to counter plaintiff claims of damages in these personal injury suits. Some courts are often eager to oblige these requests for discovery. As one judge wrote in 2010,
“Plaintiffs who place their physical condition in controversy may not shield from disclosure material which is necessary to the defense of the action.” (Romano v. Steelcase Inc., 30 Misc. 3d 426 – NY: Supreme Court 2010)
How Social Media Can RUIN Your Personal Injury Case
Anything you say now will be used against you in the court of law. It’s popular saying we hear all the time in movies and real-life scenarios. This also applies to social media and unfortunately so many people don’t know whatever they post on social media can be used against them on a personal injury claim.
Currently, Social media is an integral part of our daily life. It helps us to connect with the outside world wherever we are. With social media, we keep in touch with our friends, family members, partners, etc. Social media has impacted us in many different ways, both positively and negatively.
Negative impacts of social media on personal injury claims
Personal injury cases are mostly filed by people who are going through physical pain or injuries and therefore seeking the cost of treatment for the injury and other damages associated with the pain and discomfort that comes with the injury. Medical experts are usually consulted to carry out the necessary test that attests to the claim. When you file a personal injury case, the first most important thing a lawyer will do is to check your social media pages to see if your claims contradict what’s on your profile.
For instance, you could say you have a sprained knee and then end up posting on social media that you’re going for a run or posted a video of you playing football. This contradicts your statement of having a sprained knee and can be therefore used against you. A claim can be disproved with your social media profile immediately making you lose out to the benefits of personal injury claims. The impact of social media on a personal injury case is usually negative.
Social media, as engaging and fun it could be, could also be our downfall. A lot of adults are addicted to social media making it indispensable to them. They post every minute of their lives regardless and forget about the negative impact social media could have on a pending case. Social media’s impact on a personal injury cannot be overemphasized. Social media can work against your claims especially when you file a personal injury case and end up doing the opposite of your statement online. When filing a personal injury lawsuit, limit what you post on social media and avoid posting stuff related to your case. And also tell your friends and family to limit their post about you or not post anything at all regarding your case.
Proceed with Caution
Given that even seemingly innocent posts and pictures on your social media accounts can and will be interpreted in the worst possible way by the defense, it is incumbent upon you to take precautions to ensure that you do not harm your own case through your use of those platforms.
- Avoid social media altogether, if at all possible. And instruct close friends and family to avoid posting pictures or comments about your physical and emotional condition, to limit potentially adverse information that may be used by defense counsel.
- If you must post, never discuss your condition or your lawsuit. Post no pictures or comments about your medical treatment, recovery efforts, or anything else related to the case.
- Try to view every post you make through the eyes of your opponent’s lawyer. Imagine how he or she might use it to try to refute your injury claims.
- Avoid events and gatherings where others might post pictures of you that could be used against you during your lawsuit proceedings.
As uncomfortable as it might be to hear, it is critical that you always remember that your lawsuit is an adversarial proceeding. Your opponents will use every fact available to them in an attempt to defeat your claim – including innocent posts you share with friends and family on your favorite social media platforms. Knowing that, it falls to you to ensure that your accounts don’t provide the defense with the ammunition it needs to deny you the compensation you deserve.
ABOUT HERRMAN & HERRMAN P.L.L.C.
With over 100 years of combined experience among the legal team of Herrman & Herrman, P.L.L.C., our Texas personal injury attorneys have successfully resolved over 20,000 cases. When representing injured Texas residents, we fight for justice against wrongdoing and aggressively pursue the best resolution to complex personal injury claims.
DO YOU THINK YOU MAY HAVE A PERSONAL INJURY LAWSUIT?
If you or a loved one was injured, please contact us for a free initial consultation and case evaluation. Herrman & Herrman, P.L.L.C., is a locally based law firm focused on holding negligent individuals and companies accountable for their wrongdoing. We are not a personal injury mill that advertises nationwide. We provide individualized advocacy in attending to all aspects of claims that involve. Our firm has offices in the following locations: Corpus Christi, Corpus Christi South Side, Brownsville, McAllen, San Antonio, Houston, and Ft. Worth, TX.
We remain by our clients’ side, handling all aspects of their claims and attending to all legal, medical and financial needs. That dedication is combined with experience, legal knowledge, and insight from a former insurance adjuster and several former insurance defense attorneys. Whether our clients are suffering from physical pain from an accident or the emotional grief of death, we treat clients with compassion. We put their mind at ease during difficult times by answering their questions concerning the length of their claim, medical bills, financial compensation and their overall need for a lawyer.