The Perils of Social Media and Electronic Communication in a Personal Injury Case
It seems like everyone is on social media these days. If statistics are to be believed, billions of people worldwide use platforms like Facebook, Twitter and Instagram. It’s very likely that you have an account on one or more of these social media platforms.
In the event of an accident, however, these social media platforms can become minefields of danger for any personal injury case. Statements and posts you make on these platforms can lead to major headaches for you and your attorneys down the road, and make it much harder for you to collect the damages you deserve.
In our practice, we’ve seen a lot of serious problems caused by careless social media use. In this article, we’ll explain why that is such a risk, and how you can avoid falling into this trap.
Why Is Posting on Social Media After a Personal Injury So Dangerous?
After you file a claim, the responsible party – or their insurance company – will want to deny your claim. That’s just how the system works.
In doing so, they will try to find any evidence they possibly can that you are filing a fraudulent claim. For instance, if you claim to have broken both legs, but a defense attorney can find evidence of you walking two weeks after an accident, then they will certainly use this against you.
This is just what defense attorneys in a personal injury case do. They will dig to find anything they can to use against you and to attack your credibility. As you know, in law, anything that can be used against you, will be used against you. And if you’re a victim of an accident, then the defense will be setting their sights on you.
What does this have to do with social media use? You guessed it – insurance companies and defense attorneys regularly look on plaintiffs’ social media pages for potentially incriminating evidence.
Social media posts, you see, are legally considered to be “evidence.” You may think that if you make your profile private, you will get yourself out of this peril. But insurance companies are very sophisticated. They find ways to break through that privacy and get the evidence that may destroy your case.
In this day and age, it is standard practice for the defense in your case to look you up on the internet and try to find your social media profiles. On the flip side, it is relatively uncommon for injured plaintiffs to know all the right practices for keeping themselves safe on social media.
This makes careless social media posting, without exaggeration, one of the biggest dangers to a modern personal injury case. And it is a danger that could affect you.
What Not to Say on Social Media
It probably will not surprise you, if you have read this far, to hear that any posts related to the accident are a bad idea. However, it may still surprise you to learn that a great many posts entirely unrelated to the accident can get you in trouble. In the course of our practice, we have seen cases of this.
Here is a list of the main types of posts you should be careful about:
Anything about the accident, what happened, or how badly you were injured.
This one is pretty self-explanatory. Do not make any sort of statement about what caused the accident or the extent of your injuries or other damages. (This includes damage to your car and how much time you were forced to take off work, which will be factored into lost wages later.) And whatever you do, don’t make any admission of fault whatsoever.
Posts which include any variation of “I’m okay” or “I’m lucky.”
Since we so often share with our social media connections all sorts of posts about the trivial day-to-day irritations of our lives, it’s perfectly natural that in light of a huge and life-changing event such as a car accident, you will want to reassure your friends that you are all right. This is a mistake! Any post along these lines will be used to say that you are not seriously injured. “All right” might just mean “alive” to you and your friends, but insurance companies will spin it differently.
Posts which depict you engaging in any activity inconsistent with being severely injured.
If you put anything on social media, whether a written post or a photograph, which depicts you outdoors or having a good time at a party or anywhere else, this too could be used against you. If you were hiking, swimming, or doing other strenuous physical activity, insurance companies will seize on this as proof that you were not as injured as you say you were. The same goes for partying. Of course, this isn’t fair; a single good day on which you were able to get out and do something physical does not mean that you were not legitimately injured. But try convincing a jury of that when they blow that up…
Any posts regarding your case, even if unrelated to the accident.
This one, too, is fairly self-explanatory. Do not post any information about your personal injury case until it is all over. Your case is confidential, something you should only discuss with your attorney (and who is forbidden from speaking about it publicly by attorney/client privilege). Posting on social media completely negates this confidentiality and destroys the attorney/client privilege in relation to those posts. In addition, anything negative about the other side in a case could be used to imply “bad faith” on your part.
Any posts which make you look too happy.
This is particularly important as pertaining to a certain subset of damages: those related to pain and suffering and emotional distress. If there are a lot of posts of you on social media which make it seem like you are living a good life, this could be used to suggest that you were not actually that traumatized by the accident, and it will reduce the award for noneconomic damages (as well as economic damages related to factors such as post-traumatic stress disorder).
Any posts that would embarrass you in front of the jury.
We always approach our cases from a trial perspective. While most of our cases get settle before court, we always prepare our cases as though we are going to try the case. This category is a catch all. Don’t let the other side have ammunition against you. Do not post anything that would make you look unsympathetic to the jury. The jury are subjective people. If your case were to go to trial you want them to like you as much as possible, so they can award you more money for your injuries.
Is Making Your Account Private Sufficient?
Many users are reluctant to part with their social media accounts entirely, and understandably so. A personal injury case, after all, can take years. Setting your account to the highest possible privacy settings might seem like a good compromise.
Increasing the privacy settings is a step in the right direction, but it may not be enough. Insurers might be able to find various ways around this. For instances, they can still see photos that you were tagged in by friends with more public accounts. They might even send you a friend request from a fake profile!
Even if the insurance company’s attorneys cannot find a way around your social media privacy settings, they still can, in some cases, subpoena your social media accounts and force you to show various things you posted. Social media posts, regardless of the privacy settings, are well within the realm of discovery in a car accident lawsuit.
What About Private Messages / Text Messages?
Many clients think that private conversations, such as those conducted via email, text message, or Facebook and Twitter direct message, are safe. Again, this is incorrect! These conversations, too, can be subpoenaed.
This is where it gets scary: everything you say, even in your text messages, can potentially be used against you.
There is nothing that we can do other than to advise you to follow a strict code of omertà regarding your case. Do not tell anyone anything, even your closest friends, until your case is settled. If it is absolutely necessary, then let your friends know you are all right in person, where there is no written record of your words.
Should I Delete My Social Media Posts?
If you’ve already made a social media post that you think might be a problem, then you may conclude that deleting it is the best course of action.
We can’t advise you directly on this, since that would technically constitute advising you to destroy evidence. Also, posts which are deleted may still be recoverable.
All in all, although you may delete problematic posts of your own accord, it’s best to think before posting!
The Best Course of Action
The best course of action is to deactivate your accounts entirely after an accident. If this is too much for you, then the second-best course of action is to keep them active but maximize the privacy settings and think very, very carefully before posting anything, for the entire duration of your case.
Either way, you should not speak about your case via any sort of electronic communication, your attorney being the exception.
This might be tough, especially in our age with our dependence on social media. But if you want to win your case, then tough choices may have to be made. Simple as that.
If you have been injured in an accident, don’t delay, contact the Law Offices of Jennie Levin, P.C. right away. We will do all that we can to help you. Also, if you found this article interesting and you believe that your friends would be interested in learning more about this, then share on Facebook, Twitter, and other social media. Finally, feel free to leave us a comment, and let us know what questions you would like us to answer next!