What is the interplay between social media and personal injury claims? Many people post every detail of their lives on Facebook, Twitter, Instagram, and the like. It is a tool in the modern world to keep our friends and family informed. Social media posts are also a method to promote business enterprises. However, when you are a victim of a dog bite, car crash, malpractice, premises, or other injuries, the use of social media often impacts your personal injury case.
SOCIAL MEDIA POLICIES OF LAWYERS
Most experienced injury lawyers inform their clients of a social media policy to protect them from defense and insurance company manipulation. But, of course, you are pursuing your personal injury claim because somebody hurt you. You likely experience both non-economic damages (i.e., pain, emotional distress, loss of abilities) and economic damages (i.e., lost wages and medical bills). Injuries vary from sprains and strains to broken bones to traumatic brain injuries. Your lawyer designed a social media policy to help you get fair compensation for all of your damages. Unfortunately, the insurance companies’ and defense lawyers’ goals are to pay less for your injuries (you may have heard of “the three d’s – deny, delay, defend).
Often, injured victims tell me, “I didn’t post anything about the accident, so I am okay, right?” Unfortunately, many don’t understand how the other side uses “irrelevant” information. Often, our posts are not relevant to the car accident, dog bite, medical malpractice, nursing home neglect, or premises liability event. However, that doesn’t mean they are not relevant to the amount of money to compensate for the harm.
During my 25 years of extensive experience, more than one insurance adjuster said, “your client wasn’t that badly hurt; he has a perfect Facebook life.”
WHAT POSTS ARE MOST OFTEN HARMFUL TO YOUR CASE?
First, remember that an intelligent and creative lawyer makes connections between your posts and your case that you believe are ridiculous. Nonetheless, a judge will ultimately listen to those arguments and determine the merit. Even before a judge excludes the evidence, it often reduces the offer made to settle your case. Now, the likelihood of extended litigation (remember “the three d’s”) is much higher.
Here are some ways I’ve seen posts used against people:
- show behavioral tendencies like drinking, recreational drug use, photos while driving, and other high-risk behaviors to imply you were partially at fault for your injury
- posts showing activities inconsistent with the victim’s claims of incapacitating and severe injuries, such as dancing, on vacation, bowling, or playing sports;
- posts showing home improvements or other physical labor when the victim claims lost wages or earning capacity because work is too painful
The insurance company or defense lawyer often misuses the information to manipulate a lower amount of money paid to resolve the claim. Accordingly, the best practice is not to post at all!
WHAT ARE THE BEST SOCIAL MEDIA PRACTICES WHEN YOU HAVE AN INJURY CLAIM?
- Stop posting altogether
- Set privacy settings to prevent others from seeing anything you post (or previously posted). But, remember that this data can still be used against you if the case goes to the lawsuit phase.
- Use the “tag review” function on your social media accounts. This tool allows you to approve or reject anytime somebody else tags you in their post.
- Decline friend requests from people you don’t personally know. These can be fake profiles or people acting for the defendant to dig for information. While there are ethical issues with this, especially for lawyers, it does happen and hurts claims.
- Never delete information or accounts – just set the posts/accounts to a “me only” setting. Intentionally deleting relevant or discoverable information is spoliation of evidence, for which the sanctions are worse than the original content.
Remember, content never disappears from the internet. Whatever you post is available somewhere forever. Therefore, always think before your click.
THE INFAMOUS “I LOVE HOT MOMS” CASE DEMONSTRATES THE DANGERS OF SOCIAL MEDIA AND PERSONAL INJURY LAWSUITS – WHAT NOT TO DO!
The Virginia case of Lester v. Allied Concrete was a wrongful death and personal injury lawsuit. His Facebook page included a photo of him “clutching a beer can, wearing a T-shirt emblazoned with ‘I ♥ hot moms’ and in the company of other young adults.” Lester, 2011 Va. Cir. LEXIS 245 at *12. The plaintiff in the lawsuit lost his young wife in a tragic accident. During the discovery phase of the lawsuit, his lawyer instructed “Lester to ‘clean up’ his Facebook because ‘we don’t want blowups of this stuff at trial.’” Lester, 2011 Va. Cir. LEXIS 245 at *13. Lester listened to his lawyer and deleted the account.
The defense sought sanctions because Lester deleted his account and committed other discovery violations. After a verdict for the plaintiffs, the Court ordered sanctions against Lester and his attorney. The Court ordered his attorney to pay $542,000 in sanctions. Worse yet, the Court ordered Lester to pay an additional $180,000. According to news reports, the attorney resigned his position as managing partner and stopped practicing law.
This sorted behavior began because Lester posted 16 images on Facebook after the wrongful death case arose. Once Lester posted the concerning photos, the lawyer’s job was to minimize the damage, not make it worse. Had the lawyer adequately warned his client about social media’s impact on a case, he would know not to post the photos. Instead, he would follow the rule “think before you click.”
What to do if you are injured?
Have you been injured in an auto accident, bit by a dog, or otherwise hurt? First, get proper medical care and let your doctor know of all of your physical and emotional changes from the crash. Then, call ME, Michael Eisner, at 216-905-2200 for a free case evaluation. In most cases, I only charge a fee when I am successful in getting you a recovery.
Michael Eisner has been proudly representing injury victims in Ohio for over a quarter-century. http://michaeleisnerlaw.com/contact-us/