Social Media and Lawsuits

Our online presences are public and that the things we put up online can never really be removed. No one wants private photos or information made public. However, even seemingly innocent information can cause big trouble if you’re involved in a personal injury lawsuit.

What’s the problem with social media?
You might think twice about posting racy pictures online, but not about a picture of you smiling with your friends, right? How about a picture of a delicious meal you just cooked? How about tweeting a funny joke? It seems harmless. However, insurance companies are spending big bucks to have experts sift through your social media presence looking for evidence against you.

For example, say you were injured in a car crash and broke your leg. Now you’re suing for compensation. A few months after the wreck, you post a photo of yourself with your friends at a barbecue and you’re smiling in the picture. The insurance company for the other party in the lawsuit finds that photo and uses it as evidence that you’re not really as hurt as you’re claiming. You must be fine if you’re smiling at a party with your friends, right? They can then use that photo against you in court to lower the amount of your compensation.

Social Media in Court
There are very specific rules governing what information is admissible as evidence in court. These rules determine what evidence you’ll have to turn over to the other side in a lawsuit, and vice versa. People often believe that their evidence belongs to them and the other side must simply find what they can. That’s not the case. Your opponent in a lawsuit has the right to demand certain evidence and records from you in order to ensure that both sides have the information they need to continue on with the case. That’s how the insurance companies in a personal injury case can see your medical records – they don’t just have to rely on your word and the word of your doctors.

The rules on social media are not well-settled because social media is a relatively new phenomenon. In general, posts that are available to the public will probably be admissible as evidence. Posts to a personal or group page that is private are slightly more complex. It’s unlikely that your opponent’s attorneys will get permission to search through your entire private social media presence. However, they may be able to get access if they can show that it’s reasonably calculated to lead to the discovery of admissible evidence.

Why do these posts matter to your case?
When you file a claim for compensation due to personal injury, it’s not just a matter of turning in your medical bills and missed hours at work to get a check. The insurance company of the person or company that caused your injury is going to make you (and your lawyer) prove every dollar that you claim. You’ll have to show that you actually needed the medical care that you received or that you actually couldn’t work during that time. If your claim includes pain and suffering and other non-economic damages, you’ll need to prove those, too. If you put up a picture or comment showing that you’re happy, not in pain, or potentially able to work, you’re going to have to explain that in court.

In some cases, you may find yourself in trouble even if you’re not the one who posted the comment or photo online. If a friend tags you in a photo or comments that they “had so much fun with you last night” or “can’t wait to go dancing with you again,” that can also be used as evidence that you’re not as injured as you claim.

It’s bad enough if your social media presence is used to show that you don’t actually need the compensation you’ve claimed. Maybe they can show that some of your doctor’s bills weren’t necessary because you weren’t really in any pain. Maybe they can show that you could have gone back to work because you were able to host a barbecue. If you post a photo of your car after a crash, as many people do, showing the damage, they can use that to show that the crash was not as severe or couldn’t have caused the injuries you’re claiming. Those things will decrease the amount of compensation you can claim.

If your social media presence indicates that you’re not injured at all or that you’ve exaggerated your injuries, you could lose any claim for compensation.

How can I protect myself?
You should never claim injuries you don’t have or hours at work that you didn’t actually need to miss. Even without the evidence of your social media presence, an experienced attorney for your opponent may be able to dig up evidence to show that your claims are false or inflated. They may find a credit card receipt from a dance club, for example, indicating that your leg must not really be broken. They may find evidence that you’ve been working under the table. With social media, it’s that much easier.

Unfortunately, social media can also make it easy for insurance companies to get out of compensation you’re rightly owed. Everyone smiles when they’re going to be in a photo, regardless of how poorly they’re feeling. Even totally honest claims can take a battering from ordinary social media posts.

For example, if you’ve made Facebook posts about all the fun you had on your latest skiing expedition after alleging serious and permanent injuries from an auto accident, that information is relevant to the lawsuit from the car wreck and will be discoverable.

In a Louisiana personal injury case- Farley v. Callais & Sons, LLC – a federal judge ordered of all posts his lawyer determined to be related to the accident in question or plaintiff’s alleged injuries. The Judge would not, however, require Plaintiff to share his Facebook login information or sign an authorization permitting defendants to get the information directly from Facebook.

In the case of Zimmerman vs. Weis Markets, the plaintiff claimed permanent injuries while using a fork lift. At the same time, he posted that he enjoyed bike stunts on the public portion of his Facebook page. The court determined that this information was relevant to the legitimacy of his claims. Privacy interests didn’t trump the discovery requests in this case.

In Tompkins vs. Detroit Metropolitan Airport, the plaintiff claimed back injuries due to a slip and fall at the airport. The defendant came upon some plaintiff photos posted on the Internet showing him pushing a shopping cart and holding a dog. The court rule that these photos weren’t inconsistent with the plaintiff’s injuries. Furthermore, the court stated that pictures showing the plaintiff jogging or playing golf would’ve shown an inconsistency in the plaintiff’s claim and would’ve have been discoverable.

There are a few things you can do to protect your personal injury claim from social media-based challenges:

Stop posting.
Don’t put up fun pictures with your friends and family. Don’t post comments about parties or events. We’re all trained to smile for photos even if we’re in pain, so it’s easy for the insurance companies to show you acting happy and healthy.

Don’t post about your injury.
This may seem counterintuitive – you’re really hurt, why can’t you say so? Unfortunately, a small slip in wording or a timestamp can open cracks in your case. It’s best to keep all the relevant information off of social media. In general, you should never discuss a pending lawsuit, whether in person or online, with anyone other than your attorney.

Set your privacy settings to “private”
Check your privacy settings. Your social media accounts should all be set to “Private.” Set your account to require your approval if anyone tags you or tries to place something on your “wall.”

Talk to your friends and family.
A friend’s picture of you or comment on your wall can be just as damaging as your own photos. Remind people that you’re involved in a lawsuit and that you’d prefer not to be included in their social media presences.

Watch out for strange friend requests.
There have been reports of insurance company employees creating accounts and sending “Friend Requests” or the equivalent to injured parties in order to gain access to their private pages. Do not accept a request from anyone you don’t know personally during your case.