You’ve undoubtedly heard stories about criminals arrested after posting pictures of their loot on Facebook, or read about those parents who had some explaining to do after posting a video of their child duct taped to the wall. If you’re like many Americans, you may have read these stories with dismay, wondering how someone could possibly make such an obvious and serious mistake.
Still, you may not realize that social media posts can be just as devastating in a personal injury case.
Investigating the plaintiff in a large personal injury case is nothing new. When a defendant or an insurance company is looking at paying out damages for long-term impairment, lost income potential and other ongoing costs, they and their attorneys are invested in disproving those claims. Once upon a time, those investigations involved private investigators, hidden video cameras and questioning friends and family—sometimes under cover.
Of course, those things still happen. However, social media has made those investigators’ jobs much easier. Where an investigator might once have had to follow you around or win over one of your friends to collect certain types of evidence, today he can simply scroll through your Facebook feed.
You’re probably accustomed to hearing warnings about how the Internet is forever and your social media postings could come back to haunt you, and you may be inclined to take those warnings lightly. However, the risk to a personal injury plaintiff who posts in social media or is tagged by friends is not hypothetical. Here are just a few examples of individuals who paid a heavy price for seemingly-innocent postings.
Zackery Clement’s case was one of the first to receive major media attention, back in 2009. Clement had been injured when a refrigerator fell on him at work and required multiple surgeries. After the third operation, Clement sought to extend his worker’s compensation benefits, saying that he was in excruciating pain and needed further treatment.
These social media photos were introduced as evidence. This case offers up some chilling reality for plaintiffs who honestly think they have nothing to hide. As you can see, the evidence of Zackery “partying” amounts to nothing more than photos of him sitting with a friend and having a drink—hardly inconsistent with being in constant pain.
Losing a case because your Facebook page or Twitter stream shows you out in the world and active when you’ve claimed to be debilitated or your account of the facts among friends doesn’t quite match the pleadings is just one way social media use can really cost a personal injury plaintiff.
Isaiah Lester, whose wife was crushed to death by a semi, is just one example of a plaintiff who paid a heavy price for trying to conceal social media content after the fact. Acting on some very bad advice from an attorney who was later sanctioned, Lester tried to “clean up” some Facebook material. In the aftermath of the deletion of Lester’s account, the verdict in his case was cut in half and he and his attorney were fined a combined $722,000.
As the story above illustrates, cleaning up your mistakes on social media after the fact can create even bigger problems. Thus, it’s important to manage your accounts sensibly from the beginning. Talk to your personal injury lawyer about social media at your first opportunity. If you haven’t yet retained an attorney, here are a few basic tips to help you steer clear of trouble until you’re represented.
If you’ve lost income because of physical limitations after your accident, any evidence of physical activity could potentially be used against you, even if it isn’t strictly inconsistent with your injuries. For example, if you’ve been forced out of your previous career because you can no longer regularly lift 50 pounds, a video of you running or a photo of you holding a 40-pound child could be used to sway the jury, even though neither demonstrates that you can regularly lift 50 pounds.
Even the smallest inconsistency in your account of the incident can be used to discredit your testimony. Even if you’re telling the absolute truth, social media posts may be less carefully worded or simply abbreviated in a way that comes back to haunt you. It’s generally best to avoid talking about your accident in social media at all.
Maybe you have your Facebook page locked down tight and only your friends can see your posts. That won’t stop the defense from subpoenaing that content, so don’t get too confident. And, be cautious about accepting friend requests from people you don’t know well.
Social media posts can hurt your personal injury case or other lawsuit, and there’s no real upside to taking the risk. If you’ve been injured in an accident, have a worker’s compensation claim or plan to file a wrongful death case, talk to a New York City personal injury lawyer as soon as possible.