Though near-constant engagement with social media has become a way of life for many Americans, the habit of regularly updating statuses, locations, and general goings-on can pose a serious threat to the success of a personal injury claim. Scrutiny from insurance companies and opposing counsel comes in many forms, and in terms using social media during the process of settlement negotiations and/or litigation, plaintiffs are well-advised to stay out of sight as much as possible.
The Dangers of Social Media to Plaintiff Injury Claims
Make no mistake, once an adversarial relationship forms between a personal injury plaintiff and an insurance carrier or another defendant, the gloves will come off and all avenues of attack will be considered fair game. Opposing counsel is almost certain to scour a plaintiff’s social media accounts searching for evidence that will minimize or even eliminate damage claims. Any suggestion that the injuries now being asserted are in fact nonexistent, are far less serious than stated or were already in existence prior to the event in question will be used to strengthen the defense case. Photos of hiking trips taken by someone claiming to be seriously disabled after a car wreck, check-ins to amusement parks or discussion threads reminiscing about last weekend’s club-hopping excursion are all potentially fatal to an injury case, something Facebook, Twitter and Snapchat devotees must bear in mind.
Possible Negative Impact on Your Claim
Avoid posting photos of the scene of a car accident on social sites. Naturally, accident posts prompt injury-related discussions, which could be detrimental. For example, often injuries take a day or two to surface such as soft tissue injuries, minor fractures, and mental conditions. It is possible that others post comments like “at least everyone is OK,” which even if you do not affirm, could be potentially damaging. Another consideration is that posts regarding the case are very easily accessible and require minimal cost and effort. The defense can be potentially gathering information about your recreational, social and occupational happenings any time of day.
Evidence that is likely to be introduced against a plaintiff in an injury suit is obviously that which raises doubt about the validity of your claim. The most commonly sought information would be that which suggests that you are not injured, or that your injury is not as severe as implied in court. Another problem is potential evidence that you are not truly under tremendous emotional or mental stress. This would be used to counter claims such as emotional hardship, suffering, and distress.
The Past Can Be Used Against You
It is also important for plaintiffs to remember that it is not just current activities in which the opposing side will have an interest. Exercising discipline in terms of current posting habits is not always enough to keep hopes of financial recovery alive. The fact is that older posts that remain online for anyone to find can also prove problematic.
Arguments that the accident at issue was the cause of crippling back pain are certain to be severely undermined by a series of posts from years prior soliciting advice on treating a herniated disc. Even if the injuries are not in reality connected to one another, the damaging inference remains. The insurance company investigators or attorneys for the other side will not be overly concerned about the truth of the picture they are painting with social media posts, but rather with the overall impression they create in the minds of those deciding the case.
How Sites Use Your Information
Most of the social media sites are free to join. In order for the site to sustain itself, it may rely on advertising revenue directed to their users. We have all seen the very long user agreements that explain what can and cannot be done with your information when you are a member, but it is doubtful that most people will read all the fine print and interpret the disclaimer. For this reason, it is best to always remember to avoid posting anything that ultimately could be used against you online relating to a case.
Best Practices For Social Media Use During Claim
Avoid posting details involving your case on social media. These sites are inherently public and it is unlikely that you would derive any benefit from doing so. Review your past posts to see if any of the information could be potentially detrimental to your claim. Try using Google to search for yourself, which will provide some insight into what a member of a defense team may be able to find out about you. Limit what others are posting about you online, as comments or information can be taken out of context and used against you. All of the social media platforms have some customizable preferences or settings that allow you to increase the privacy of your profile. It is important to restrict access for those that you do not know if actively involved in some form of civil litigation.
1. Review Privacy Settings
The vast majority of social profile sites have what may be referred to as privacy options, customizable settings, or accessibility preferences. You should first access (view) your profile as a guest to see what information is viewable to the general public. Next, consider what adjustments you should make to the settings to limit access from unknown members of the public. Also, conduct a general search within each media platform you use to see what information about you is revealed to those specifically attempting to locate information about you.
2. Limit Comments
Your social media profile likely contains comments posted from others. It is impossible to control all comments that someone could potentially make to your profile. It is possible that a sarcastic or light-hearted comment from another user could be misconstrued or misinterpreted and be viewed negatively. Make sure to make adjustments to the comment settings or temporarily disable them all together.
3. Asses Your Persona
Social media users generally project a positive outward appearance (persona) to others. If the plaintiff in a case is claiming they are enduring significant pain, emotional distress, and a lack of normalcy, your public profile may unintentionally harm you. Also, remember that many personal injury cases take several years to be concluded; therefore, older posts that contain statements you made relative to the incident could be used to contradict what you state in court to “based on your recollection.” This is an example of a tool the defense could use to show a lack of credibility or simply imply that you are not being honest.
4. Be Careful What You Post About Work History
On many sites, you may post a history of your previous employers and positions held. This information could potentially be providing an opposing party in a case an opportunity to use this data against you. For example, perhaps the defendant knows someone who worked at one of your old employers that you knew who has an old grudge. Another example would be a social profile that you have not managed for a few years that shows you as currently employed in a position, yet you are claiming that your injuries prevent you from working.
Colorado Bar Opinion
The Ethics Committee of the Colorado Bar issued a formal opinion on the ethics of investigational usage of social media among attorneys. The opinion was determined to align with the Attorney General’s position on the subject:
- Public information is allowed under the law or Rules of Professional Conduct.
- Information not intended for the public, or restricted by a user’s social media account privacy settings is prohibited. The exception is if done in compliance with RPC 4.2, which outlines directly contacting represented individuals.
- Attorneys should not send friend requests to access restricted social media information without disclosing their role as an attorney in the case and their professional relationship to the client(s).
Guiding Injured Coloradans Through the Claims Process
It is critical that injury victims in Colorado do not underestimate the effect social media posts can have on their damage claims. Defense counsel and insurance adjusters will go to great lengths to poke holes in every plaintiff’s arguments, and it is wise to thwart that effort whenever possible. Attorney Jeremy Rosenthal can help clients effectively control information available about them online and therefore boost their chances of obtaining the outcome they desire. If you would like to schedule a no-cost consultation to discuss your case, contact us at 303.825.2223.