Social Media and Your Personal Injury Lawsuit
By Law Offices of Jeffrey S. Glassman, LLC, Massachusetts
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It is second nature in this age of technology to post up-to-the-minute details of almost every facet of our personal lives. We share photos, experiences, observations and opinions. But when it comes to your personal injury lawsuit, you need to be very cautious about every piece of information you make public.
In fact, you should go over some social media ground rules with your personal injury lawyer, once you’ve secured representation.
In many cases, injured parties wonder why it even matters when the events that gave rise to the case have already occurred. What difference will it make if you post a few smiley faces or vacation photos?
As it turns out, a lot. There is substantial case law to back this assertion.
Courts have recognized the potential influence of social media postings on injury claims. In fact, it is in many cases considered an unrivaled source of evidence. Although this was uncharted legal territory just a few years ago, relevant social media posts are routinely entered as evidence where applicable – and that can hurt you more often than not.
How Social Media Can Hurt Your Case
Of course, what already happened at the site of the accident or incident does not change. But what is often at stake is proof of injuries suffered. This can directly and profoundly impact the amount of compensation you will stand to recover.
An obvious example would be a person who claims a serious injury resulting in severely limited use of an arm who then turns around and posts pictures of themselves rowing a canoe or swinging a baseball bat. What that does is tell jurors the plaintiff can’t be trusted. His or her credibility is shot.
But most personal injury plaintiffs don’t malinger or exaggerate the extent of their damages. The bigger problem is usually when it comes to how a judge and jury perceive a plaintiff’s pain and suffering and mental anguish. These are two types of damages that are available in a personal injury case. Unlike medical bills or lost wages, the existence and extent of losses for pain and suffering is more subjective.
Take the case of Romano v. Steelcase, before the Suffolk County Supreme Court. An office worker filed a product liability lawsuit after the chair in which she’d been sitting collapsed. In her complaint, she alleged the resulting injuries left her mostly confined to her house, unable to socialize with friends or even carry out basic tasks of independence.
Defense refuted, citing photographs she had posted on Facebook after the incident that showed her smiling outside her home. They took note of the smiling emoticons she posted and the number of friends on her friend list. All of this, defendant argued, was evidence that plaintiff had not suffered to the extent she claimed.
Such evidence is often twisted to make plaintiff look as bad as possible. This is despite the fact that we often put our best face forward on social media. A 2012 study conducted by the Vanderbilt Journal of Entertainment and Technology revealed people screen their social media photos and posts to make them seem as socially desirable as possible. They aren’t going to post photos of themselves looking sad and lonely or embarrassed or mention it to all their friends, family and acquaintances – even if that’s exactly how they feel!
Experienced injury lawyers know there is evidence that undercuts the value of such information in court, but it doesn’t help that jurors will often give negative material more weight. That’s because even though these assertions and images don’t provide the whole story, they are considered “straight from the horse’s mouth.”
No Reasonable Expectation of Privacy
One of the common issues in dispute when it comes to social media is the user’s expectation of privacy. It is a pervasive – and erroneous – presumption that when social media accounts are set to “private,” that the material can’t be made available for public scrutiny.
As The American Bar Association noted, this argument has been rejected again and again by courts.
When you share content with others – even if it is only with a small group of specially-selected friends – courts have held there is no reasonable expectation of privacy for that content. Courts have noted that the very intent of social media is to share information.
This is not to say there is no benefit to boosting your privacy settings. Courts usually don’t allow “fishing expeditions,” meaning free-for-all access or presentation of evidence that isn’t relevant. There has been some reticence by judges to allow discovery of social media content in cases where a requesting party hasn’t shown at least some specific evidence indicating relevant information is contained therein. So if there is limited information that is publicly available, it gives the opposing side less of a basis to argue for greater access to those accounts based on relevance.
What You Should Limit
Specifics of your social media limitations should be discussed with your attorney, as they will vary from case-to-case. In general, though, it’s smart to refrain from posting:
• Any information on conversations you had with your attorney.
• Any details of your medical diagnosis or treatment.
• Expressions of frustration with the case or with the opposing side’s insurer.
• Details of any phone calls, emails or other exchanges you’ve had with anyone in the case.
It may also be a good idea to limit the number of posts, photos and check-ins you make on a regular basis. Don’t allow your friends to tag you in photos or check-ins either. Also, be wary of any new friend requests, especially from people you don’t personally know.
Keep in mind that even posts that are seemingly innocuous can be used against you.
ABOUT THE AUTHOR: Jeffrey S. Glassman
The Law Offices of Jeffrey S. Glassman LLC has been a personal injury law firm in Boston for two decades. Attorneys show their clients they understand how physical, emotional and financial pain can occur as a result of an accident. They provide caring, aggressive and high-quality representation to victims of accidents.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.