People love social media. What's not to like? Cute babies, piano-playing cats, your 90 year-old mom playing roulette. The sky's the limit except when you are injured in a car or truck crash and are intending to collect fair compensation.
At Clark and Steinhorn, LLC we have seen thousands of cases and confronted many problematic situations. Before Facebook and Twitter stormed the world, we worried about private detectives following our clients and taking photographs and video of their unguarded monements.
The fact is even if you have a significant permanent injury, the odds are you will occasionally be obliged to bend or lift or perform some physical act that if caught on video, might be construed to show you aren't as injured as you and your doctors say.
Capable lawyers can explain and push back against such evidence but it is much trickier to do so when the evidence is self-inflicted. If you have a herniated disc in your neck from a car accident and are alleging that you require surgery, the video of you carrying your drunk friend at a bachelor party, may convince a jury that you aren't that hurt.
Many people post pictures and video that they think are sort of publicly private. Their friends can see it but can Geico or Allstate? The answer of course is heck yes! Even if you take measures to restrict your circle of contacts your privacy can be easily invaded by discovery requests in a lawsuit.
What is discovery you say? That is the process in every lawsuit where the parties to the suit (Typically you and the other driver or drivers) are obliged to answer written questions (Interrogatories) and provide documents. It is now routine for defense lawyers to ask extensive details about social media accounts including login information.
The problem is that courts are now saying such information is to be provided and your snowboarding at Wisp after the accident may not impress the jury that you are permanently injured. Even worse others may innocently post information about you that will undermine your case.
Say your bachelorette party includes dancing and you minimally participate so as not to disappoint your bridesmaids. That is the video that someone will post not the video of you sitting in pain afterwards.
So what can you do to protect yourself from claim sabotage? First, take a look at your social media postings and those about you. Then alert your attorney about what is on there so they can review things and attempt to minimize any damage. If you volunteer at the homeless shelter and have to stand and bend over while you serve meals, you can make sure your social media postings show you icing your back and taking percocet afterwards.
That may seem contrived but if it is genuine then you can tell the jury that your are proud to help others and aren't letting your injuries get in the way even though you pay the price.
Two examples of recent Facebook postings that caused problems are instructive. The first occurred in a multi-day trial, which as it came to a conclusion resulted in a posting that in effect said " now it is $$ time!" This was the subject of a cross-examination by defense counsel which made the plaintiff look greedy.
Now why the judge permitted this examination in front of the jury may have been reversible error on appeal but in the immediate term, it cast a negative light on our case. Fortunately the verdict was favorable for our client but how much more compensation they might have received is unknown.
The bottom-line, watch how your postings can be construed by the bad guys.
The other incident involved a substantial lost wage claim which was effectively negated by a social media posting bragging about another job someone was excited to be doing instead of their "usual" work. Aughhh.
Ultimately, you need to think before you post. Keep an eye on what others post about you and make sure your attorney knows what is out there. Contain your social media exuberance for a little while and you won't undercut your own case!
