Social media is a necessary discussion between lawyer/client at the beginning of every personal injury case. There are 1.59 billion mobile active users on Facebook, 400 million on Instagram, 320 million on Twitter, 300 million on Google+, 100 million on LinkedIn, and 100 million on Pinterest. For some, these social media outposts are more important than family or friends. You can see this play out at restaurants where spouses would rather look at their phones than talk to each other.
It is an epidemic in our culture today that is creating problems in marriages and other relationships as a result of people posting and connecting with past flames. But what about your personal injury case? Will your social media usage affect your personal injury case?
Remember that insurance companies are defending the person who hit you. They will stop at nothing to make you appear to be fine and dandy. In this new age of social media where people live their lives on Facebook, Twitter, Snapchat, etc., the insurance company can easily take a picture or a video out of context to make it appear that you are not injured. How you use your social media accounts may affect your personal injury case in several ways, for example:
1. Your degree of injury is not reflected in your recreational activities.
This is not easily explained. If you are claiming that you have a 30{48c504d5a5f0724c566492c27f2412e3d97a5dbd1d2791ef7ccf262d1d58a622} whole body impairment but the defense has a Facebook picture or video of you playing soccer without difficulty, then the jury is going to think several things: (1) You are lying about the degree of your injury to your doctors, or (2) Your doctors are lying about your impairment to the lawyers. Either way, if you are caught in an activity that is inconsistent with the degree of injury claimed, then you are going to lose that issue in front of the jury.
Some people like to fight through the injury and try their best to continue with activities even though it may cause pain. I understand that and sympathize with this mindset. You are a survivor, not a victim and you act like it. The problem is that explaining that post, picture, or video on your social media page is near impossible. Once the image is ingrained in the mind of that jury, there is no getting around it. You’ve heard the expression a picture is worth a thousand words? Well, photos and videos are the way social media is going. And, as an aside, read the snap chat terms very carefully—I’ll give you a hint, the images and videos are not really deleted.
Long story short, these images will come back to haunt you later especially if your injury is one that cannot be seen externally, like an amputated limb v. whiplash.
2. You never mention your injury but complain about everything else.
We all have friends on Facebook and Twitter who complain about everything under the sun. If you are one of those people, I might have unfollowed you by now. But if you have a personal injury case and you complain about everything under the sun, but you never mention your injury, then the likelihood is that you are not telling the truth about the degree of your injury. Nobody likes a complainer, but if you are a complainer, your complaints should be consistent. Otherwise, you might not be as injured as you say.
This is not to say that you should start complaining about your injury on Facebook. Read on below to learn what you should do with your Facebook or other social media account during your personal injury case.
3. You never complain about anything else but you constantly complain about your injury.
On the flip side, if you are not a complainer and someone has told you to complain every day about your injury so that the insurance company can see it on your Facebook, you are just as bad. Juries are smart than that and they can see right through this stunt. There is no need to start complaining about your injury on Facebook just to influence your personal injury case. You should share your physical and emotional feelings with people closest to you, not 1,000 of your long-lost acquaintances. Your lawyer can, and should, use lay witnesses to testify as to your injury and the effect your injury has on your life. That is the best way to prove your case. You don’t need Facebook to prove your case for you.
Conclusion
Your Facebook account can and will be used to impeach your credibility if you use it wrong. So what should you do?
You can’t delete or hide evidence from the insurance company when they ask properly for that information in discovery. But you should do one of two things: (1) increase your privacy settings so that only close friends can see your posts or (2) simply deactivate your account altogether.
First, at the very least, you should limit the insurance company’s ability to see your posts without a request in discovery. Even with a request in discovery, the requests I’ve seen have all been highly objectionable and I always object to them if they are overly broad. This will typically prevent the insurance company from ever seeing your social media activity, but it is not guaranteed. Second, deactivating the account will not delete anything but your account will not be active and there will be no new information for the insurance company to use against you. This option preserves your content if a legitimate discovery request is made but keeps you from using social media to discuss your personal injury case.
Of course, if you don’t post at all about your personal injury case or your injuries, then the insurance company will have no reason to ask for that information or nothing to go on when the judge asks why should you get everything when you don’t even suspect there is something to be seen. This is the preferred solution from my perspective. Just don’t post anything that could be seen to contradict your injuries and don’t post anything discussing your injuries. That is the best protection from unscrupulous insurance companies.
You might think that complaining about your injuries on social media would help your case, but instead, it just provides more opportunity for the insurance company to catch you in an inconsistency. It is probably an inconsistency that doesn’t matter and was unintentional, but the conventional wisdom is: don’t give them any opportunities. If they find an inconsistency, the value of your case goes down. Personal injury victims know this instinctually when it comes to talking on the phone with an adjuster without an attorney, but they ignore it when it comes to social media. Do yourself a favor and be smart about how you use social media. Bottom line, deactivate your account, thereby preserving it, and don’t post anything during the pendency of your case.
What do you think? How do you use social media? What is your biggest objection to putting social media down for a while to recover from your injuries? Email me and let me know your thoughts.
