Post at Your Own Risk: How Social Media Can Torpedo Your Personal Injury Case
Loose lips may sink ships, but thoughtless posts on social media can torpedo your personal injury case.
Whether it be on Facebook, Twitter, Instagram, YouTube, or whatever next year’s big new social media site may be, your posts, photos, comments, and videos can and will be used against you in a court of law.
Stakeouts Replaced By Searches
Think about what you post online: it can reflect your moods and show where you’ve been and what you’ve been doing. If you were the person being sued or their insurance company and you were looking to undermine the plaintiff’s claims, wouldn’t you look for whatever evidence you could find, especially if it was as easy as clicking a mouse to find it?
For a long time, defense lawyers and insurers have used investigators to try to find evidence that a claimant’s injuries were either non-existent or not as serious as they claimed. They would stake out a plaintiff or follow him or her around, hoping to capture them engaging in activities that someone in immense pain or who claims they are unable to work or move around would not be doing.
All of those long hours on the streets spent trying to capture such evidence can now take a matter of minutes with a laptop. Insurance companies and defense lawyers look at plaintiffs’ social media posts as a matter of course now. They will see what you post and what your friends may post about you.
You may be seeking damages for your pain and suffering or lost wages from being unable to do your job but you post pictures on your Facebook page of you dancing the night away or laughing it up. Or your friend tweets something about how drunk you were that night you got in the accident. Imagine being on the witness stand and being confronted with that.
Your Privacy Settings Won’t Protect You
You may think that because you’ve set up your privacy settings in a way that would keep strangers from seeing your posts means you’re in the clear. You would be wrong.
Courts have held that defense lawyers can request access to photos and information even if a plaintiff has a “private” page.
For example, in one federal court case, the judge ruled that a personal injury plaintiff’s post on his private Facebook page could be obtained by the defense because:
“[M]aterial posted on a “private” Facebook page, that is accessible to a selected group of recipients, but not available for viewing the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy.”
Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012)
My advice to clients involved in a personal injury lawsuit is to avoid making any posts on social media at all. If that is too tall an order, they shouldn’t post anything about their injuries or their accident or anything that could appear to contradict any of the claims they are making. Otherwise, that amusing Facebook post won’t seem so funny when a jury finds in favor of the defendant.
