Social media has changed the practice of personal injury law since I started over 25 years ago. There used to be a time when we had to caution our clients only about the insurance investigators that may be doing video surveillance on their homes or workplaces. Now, I must also advise our clients to use every caution when engaging in their social media choices, such as Facebook, Twitter and Instagram. Insurance adjusters and defense attorneys know that social media sites are a treasure trove of information that can be used to diminish or destroy your personal injury case. Further, such social media posting are admissible into evidence at trial to be used against you.
For example, consider the client injured in a rear-end auto accident, suffering substantial injuries to her low back. During her deposition, my client stated that her back pain prevented her from engaging in certain activities that she did prior to this auto accident, specifically going to the beach with friends. At which time the opposing attorney passed across the table to my client, very slowly for dramatic effect, a printout of her twitter feed in which she had posted several tweets, three weeks after the accident, and prior to my representation, of the beautiful day she was having at the beach with her friends. This case settled shortly after my client’s deposition.
One of the first things I alert my clients to, in writing, at the beginning of my representation, is the following:
“We recommend that if you have Facebook, Instagram, Twitter or other social media accounts, that you close those accounts while your case is pending. It has been our experience that insurance company, their representatives and attorneys will attempt to gather information about you by accessing your internet social media accounts. The information you post, even under private settings, can be used by the opposing side against you. Therefore, we strongly recommend that you close your accounts while your case is pending.”
If you find yourself unable to close your social media accounts during your injury claim, do consider the following:
• Don’t talk to strangers: Don’t accept “Friend” requests from people you don’t know. Consider that Facebook now has more than 500 million users and that there are over 100 million registered Twitter users. It is not unreasonable that a friend request from someone you don’t know could well be an insurance adjustor, investigator or defense attorney attempting to find damaging evidence to use against you.
• Don’t post anything that you wouldn’t say directly to the opposing attorney: The best approach is to treat your social media posts the same way you would treat comments you would say directly to the opposing party. Don’t post or say anything, or post a photo or video, about your accident that you wouldn’t say directly to the opposing attorney.
• Don’t post anything about conversations with your attorney: Nothing. Never. Ever.
• Do check your privacy settings: Don’t be naïve and believe that anything you post on the internet is really private. Computer hacking is a lucrative industry. But if you feel compelled to post, and out of an abundance of caution, set your privacy settings to limit which friends see your posts.
• Do remind your social media friends not to post message, photos or videos about you: Use the same guidelines for your friends’ posts as your own: if your friend wouldn’t say it directly to the opposing attorney about you, don’t let your friend post it. This includes photos and videos. Monitor your friends’ social media sites. Google yourself and attempt to remove any information that may reflect badly on yourself.
For more Do’s and Don’ts about social media and your personal injury case, read Sean P. DuBois’ Guide to Using Social Media During Your Personal Injury Case.
