Our use of Facebook, Twitter, Instagram, and other social media platforms is rampant. We think nothing of exchanging our private thoughts online. But those posts can come back to haunt people who have been injured in car wrecks. Look at what just happened to this woman.
A New York appeals court just delivered a decision that will help insurance company lawyers further pry into the social media accounts of people injured in car wrecks. The court held that a woman’s “private” Facebook status did not prevent disclosure of photos showing her physical condition before and after an accident.
In the discovery phase of lawsuits, one piece of evidence can lead to another. So courts are liberal in what attorneys can obtain if there is justification for its release. While you might assume that your post was not meant to be read by strangers, courts have taken the opposite approach.
Social media is a hot topic in the law. As the law and technology are rapidly evolving, questions about privacy versus their use at trial are common.
Is that post or tweet about your case worth it?
Absolutely not. The insurance company attorney’s job is to protect his client’s financial interests. He is hardly your “friend.”
He will do whatever he can to prove that your injuries are not as bad as you claim, or that they predated the crash, or that they were due to your own fault — or all of these. He will use any available inconsistency against you.
So know that he can and will look at your social media accounts. A Dallas attorney told me yesterday that he found a photo of my client on Instagram that he claims contradicts the extent of her reported injuries.
For example, you may be in substantial pain, but put on a good front or your child’s birthday party. That big smile on your face and comments about a great day may mask that you were feeling terrible. Nonetheless the defense will probably point to your post as proof that you are healthy.
I instruct my clients to never give a statement to their or the other driver’s insurance company. But by sharing information about your crash with your social media friends you’ve done just that. A slight exaggeration for effect or a minor change in the facts could come back to haunt you. The defense attorney will carefully scrutinize your social media narrative. If it doesn’t align with what you told him, the police, or your doctors, he will question your credibility in front of a sometimes skeptical jury.
Using social media to your advantage
Of course this is a two-way street. A personal injury lawyer can use social media to help his client.
We conduct a search of the at-fault driver’s social media accounts. Finding photos of him chugging beers at a party could be a useful negotiating tool in a damages claim against a drunk driver. I used a photo of a young woman in some salacious poses to convince her attorney to settle a serious car crash case at a mediation several years ago.
So Facebook can be used as a sword as well as a shield.
What should you do during your personal injury claim?
The best thing is to stay off or post as little as possible on social media until your claim is resolved.
Social media is a public platform that anyone can see. As demonstrated by this court case, even the supposedly private setting can’t guarantee privacy.
But what about your friends and family? You might refrain from using Facebook, Twitter, and Instagram only to have somebody else post a compromising picture. After a few tags and likes, the picture may show up in a Google search. The digital footprint is forever.
You’ve no doubt heard that what you say can be used against you in court. So be vigilant about what information you share online.