This is the first of a three-part series regarding social media. In this segment, we will consider how social media could be employed by the defense in personal injury cases. Social media is now a very widespread channel of communication in the U.S. The 2016 Nielsen Social Media Report released some revealing data concerning the prevalence of social media. Women spend an average of over six hours per week using social media, while men spend over 4 hours per week. Usage among those 35 to 49 years of age was just under seven hours per week. The most common social media platforms include Facebook, Twitter, Instagram, Pinterest, LinkedIn, and others. Social media is now involved in virtually all aspects of life including shopping, relationships, healthcare, education and others. As participation has continued to rise, it has increasingly been used in litigation. Many people overlook the importance that social media could have on a personal injury case.
Defense Usage in Personal Injury Cases
Defendants and their attorneys in personal injury claims seek evidence that runs contrary to the claims in a case. Defense attorneys have traditionally sought information from friends, neighbors, employers and even hired private investigators to unearth useful evidence. In an injury claim the plaintiff is seeking to recover damages for the harm they have incurred, thus the defense may try to use your social media messages, photos, etc. Perhaps the plaintiff's social profile shows they were out dancing last week while claiming in court that they can barely walk? For this reason, it is important to always consider the potential impact that a post may have on your case.
Usage for Other Types of Damages
Personal injury cases may include claims of emotional distress, anguish, and pain & suffering, which suggest an individual is struggling with life, mental health and well-being. On social media, people tend to project their image in a positive light, which a defendant could potentially introduce as evidence that questions your credibility. Defense attorneys have been known to use posts of the plaintiff where they are smiling, participating in social activities or at parties as evidence that the plaintiff is embellishing the true extent of their struggles or trauma.
Posts Regarding the Defendant
Plaintiffs should avoid any temptation to post negative information about those they oppose in a civil suit. People may feel like using social media to redirect anger or as a means of “venting” their problems. This is not a good idea, as it may hurt your credibility and be used against you by making you appear overly bitter or spiteful. It is possible that an opposing party could be looking for evidence to suggest that the claim is motivated by personal reasons rather than a legitimate injury.
Colorado's Requirement for Admitting Evidence
The Rules of Evidence in Colorado explain what is necessary or required to be considered as evidence. The general provision states that the information must be identified and authenticated to satisfy admissibility requirements. The following are some examples:
- Witness testimony supported by knowledge.
- A comparison of the proposed evidence with evidence that has already been deemed authentic by experts.
- Confirmation is made of distinct or unique characteristics or attributes, such as DNA.
- Conversations conducted by telephone may be supported by evidence from a telephone company record that indicates the time of the call and confirmation of the phone numbers.
- Public records may be used as evidence when it was formally filed and held as public information.
- Evidence authenticated through any other method as outlined by the Colorado Rules of Procedure.
In the Colorado case of State v. Glover, the court considered admitting evidence that was sourced from Facebook. The court applied the Colorado Rules of Evidence to validate the information which was supported by an affidavit from Facebook staff. This document contained data which confirmed that the subscriber information and the IP address were that of the defendant. The records had been maintained based on standard operating procedure. The information was deemed inadmissible because Facebook did not rely on the quality of the data for any formal business purposes which would make the integrity of the data vital.
Overall, social media is a new form of possible evidence that the Courts are still trying to work through. It is in your best interests not to post anything to your social media accounts while you are actively thinking of suing or in the middle of a lawsuit.