Personal injury cases often involve an assessment of pain and suffering, not just damages for the other party's negligence and similar fault-based factors. Courts can also assess damages and give a victim compensation based on pain and suffering as well as emotional distress. Understand that courts making a determination on pain and suffering will look to determine an injured victim's emotional state and well-being.
Social media can play a critical role in helping a defendant show that your pain and suffering claims are not true. For example, imagine that you claim insomnia, fear and the loss of life have resulted from your personal injury accident. Then imagine you post a simple Facebook post about how happy you were to see your friends and loved ones during a holiday.
This post may seem completely lacking in controversy, but the defendant's legal team could use this Facebook post to undermine your case. Similar Facebook posts or social media videos showing victims in a decent state of physical health after an injury could be used to show that the personal injury victim is exaggerating their injuries.
When it comes to social media habits harming a victim's personal injury case, seeing is believing. Take a look at real-world examples of how social media use has negatively impacted the outcome of a personal injury case.
The temptation to post happy things after a terrible accident is understandable. Victims want to let family members, friends, and loved ones know they are doing alright after a terrible accident. While the urge is understandable, expressing happiness can be used against the plaintiff in a court of law.
Slate's piece titled Evidence of Life on Facebook did a great job providing real-world examples of how injured victims can harm their own court case by posting on social media.
Fotini Kourtesis was involved in a rear-end collision, which led her to make a legal claim stating she could no longer dance or wrestle with her brother. On Facebook, however, pictures were posted showing her dancing post-accident and being lifted in the air by her brother. Unsurprisingly, the judge ruled against her in the case, demonstrating why plaintiffs should be careful with what they post to social media.
While Fotini claimed the scenes posted after the accident were carefully posed for the camera, the judge wasn't hearing it. For the judge, whether the pictures were fake or not was beside the point. The photos showed Fotini enjoyed an active social life and was enjoying life, which undermined her claim of a "loss of enjoyment of life".
The aforementioned Slate piece also highlights the story of a former Home Depot general manager who sued the company for gender discrimination. The language of her legal claim against the company indicated she experienced isolation from friends after her wrongful termination. Home Depot's legal team scoured her Facebook account, finding literally dozens of happy birthday messages on her Facebook wall.
While this may sound shocking, the lawyers argued that a socially isolated person would not receive that many Facebook messages wishing her a happy birthday. The simple takeaway, then, is that injured victims should exercise extreme caution when using social media during a lawsuit.
What you say or what can be viewed on your profile will be used as ammunition against you if a legal team can make a realistic case that what is shown on social media undermines your legal claims.
The bottom line is the other side's lawyers will look for any inconsistency between the statements/testimony you have made and what is on your social media account. In the worst case, severe inconsistencies can be "Game Over" for your case. Even if you still win the case, you can end up pointlessly costing yourself millions in compensation. To best prepare yourself against this type of legal defense, you need to understand the most likely ways your social media accounts can be used against you.
The New York State Bar Association's social media guidelines helpfully underscore the fact that a defense lawyer can view your public posts and public social media profiles, even if you are represented by another lawyer.
Your right to privacy largely ends when you make a public post or let your profile become public. During a personal injury case, strongly consider making your profile and everything you post private.
Lawyers Still Try to Gain Access to Private Social Media Content
If you set your profile to private, however, don't think you are in the clear to post whatever you want. So long as a lawyer uses their full name and an accurate profile during online conversations, the attorney may make friend requests or attempt to follow someone online in order to gain access to restricted portions of your social media presence.
As such, maintain extreme caution even when your profiles are all private. A defense lawyer still may be watching and looking to find inconsistent information.
Update: On Tuesday, Feb. 14, 2018, the New York Court of Appeals ruled unanimously that portions of a person's private Facebook profile can be accessed by opponents in a lawsuit, meaning Facebook users can be required to hand over private photographs and posts that may be relevant in lawsuits.
Never post information that could be relevant to your case online if you think you will need to delete it later. Your lawyer has a duty to ensure potentially relevant case information is not destroyed when litigation is anticipated. Deleting this evidence during a lawsuit can lead to penalties for violating a duty to preserve evidence.
There is no barrier to deleting evidence when there is not a legal requirement to do so, however. If you are worried information on your social media profile could be potentially damaging, talk to a lawyer immediately to discuss whether you can delete the content.
Your lawyer may advise you on matters related to posting new social media content so long as the information you plan to post is not knowingly untrue. Likewise, your lawyer can not help you put out false or misleading information that could be relevant or helpful to a legal claim you made.
As a general rule, always ask your lawyer before posting to social media, and never attempt to publish something that is knowingly false. This dishonest strategy will likely come back to bite you in the long run.
Keeping this information in mind, here are a few final tips to help you avoid any legal pitfalls that could needlessly sabotage your personal injury case.
Tip #1: Update Your Privacy Settings Immediately
Remember that public information is not protected by the judicial system, which is why limiting access to your social media presence is one of the best choices you can make. A defendant will have a tougher time using your social media accounts against you when everything is set to private since it will be difficult to justify a subpoena to access your accounts when the accounts are private from the get-go.
Tip #2: Download Complete Records of Your Social Media Accounts
Having hard copies of your social media accounts will make it harder for a defendant's legal team to threaten you with evidence they claim to have. Physical records are a helpful way to dispute any untrue claims based on your social media activity, so be sure to download all historical activity made on all your social media accounts.
Tip #3: Don't Tip the Defense Off to Your Location or Your Activities
"Checking in" and disclosing your whereabouts and activities is a popular feature of today's social media. Do not use this feature whatsoever while a lawsuit is ongoing.
The simple truth is any information about where you are or what you are doing/have done since the accident can be used to damage your claim. Don't give the defense that chance.
Tip #4: You Don't Need New Friends During a Lawsuit
Recall that lawyers can make attempts to get access to a private profile through friend requests. Don't risk compromising your case by accepting new friend requests that could help the defense gain access to damaging information on your social media account.
Tip #5: Adopt a Policy of Silence on Social Media for All Things Case-Related
This may seem obvious, but avoid talking about your case at all online. Your family may want updates, but leave those updates to in-person conversations that occur offline.
Posting any updates or opinions about the case is unnecessary from a legal perspective, and doing so may actually harm your case and the right to receive deserved compensation.
Tip #6: Private Messages Are a No-Go
Discussions about your health and the status of your case should be reserved for your lawyer only. Social media private messages are not the venue for discussing your case in any way, shape, or form.
Tip #7: Pay Attention to What Your Friends Are Posting
If you are careful about your account, the reality is what your friends say may provide the juiciest information for insurance companies or the defendant's lawyers.
You can be tagged in posts that reveal your location and activities, after all, so it is highly advisable that you disable a friend's ability to tag you or do "check in" updates that disclose your whereabouts.
Tip #8: Don't Proactively Delete Accounts or Old Posts
Don't let these warnings scare you into overreacting and deleting all your accounts or old posts. This may be an ethical violation of the duty to preserve evidence, so talk to your lawyer before taking any drastic steps.
The key theme of this guide is be careful with all your social media activity. And, when in doubt, be sure to talk to your lawyer and keep your lawyer fully informed to ensure you receive legal counsel from a lawyer who has the full scope of information. By adhering to these two principles, the likelihood that your social media activity will harm your case is dramatically lessened.
Contact Raphaelson & Levine New York personal injury lawyer today 212-268-3222 to discuss the facts of your case before taking the first step toward receiving the legal compensation you need to repair and rebuild your life.