Social media may feel like your best friend, but if you are involved in a car accident it can become your worst enemy. Posts today can undercut your injury claim tomorrow. Indeed, social media impact can hurt your case.
Let’s say you were in a car accident and broke your leg. You post a photo of yourself on Facebook in a cast, but with a smile and a thumbs-up to show you’re getting better. Later you may post photos of yourself enjoying physical play or raking leaves despite the injury. You don’t want your friends and loved ones to worry about you, right?
Fast-forward to your injury lawsuit weeks or months later. A defense attorney shows a jury your dated social media posts after the accident and asks, “Does this look like someone who suffered? Does it look like someone who can’t work?”
Always assume that anything you post online will be monitored by an insurance company or defense attorney and used as evidence against your injury claim. In truth, how can they resist? As the American Bar Association puts it, social media is “an unrivaled source of evidence,” particularly in areas such as personal injury cases.
As many misbehaving celebrities have learned, social media impact is pervasive, with posts available to virtually everyone. That means anything you post on social media — even if doesn’t go “viral” – has the potential to exist forever in the public record.
Whether it’s Facebook, Twitter, Instagram, LinkedIn, Pinterest, YouTube, Google+, Foursquare, MySpace, personal blog posts, website reader comments or emails, posting anything on the Internet creates a potential liability which could come back to haunt you when your case goes to trial.
Attorneys for insurance companies or defendants know the drill: They thoroughly research your social media and online presence following an accident, trolling for evidence that can be used against you. Even if taken out of context or misconstrued, social media posts can be damaging to your case.
It’s vital that you refrain from posting anything on social media that may help opponents to minimize your claim. Insurance companies will even go so far as to use your social media activity to assert fraud or exaggeration on your part about an injury, or to suggest conflicting statements that undermine your case.
If you have suffered an injury following a car accident or work accident, always avoid giving your legal opponents any ammunition for such counterattacks.
To do this, you should abstain from your normal social media activities until you’ve consulted a car accident lawyer. Apart from finding the best legal representation, guarding against social media impact is among the key steps to take after a car accident.
So, how are you to avoid social media betrayals? The simplest solution is to place all of your social media accounts on hold until your case is settled. While this may sound extreme, it protects you against saying anything online which an insurance company could use to weaken your injury claim.
If you can’t bring yourself to pause your accounts, be extremely conscious about the content you post to social media. In fact, don’t post anything written or visual about your accident — anything.
That includes your physical or mental condition. Never minimize your pain, suffering or inconvenience just to make others feel better and worry less about you. Such reassurances, while well meaning, could bolster a defendant’s claim that your injury isn’t that severe and could compromise the settlement you are entitled to receive.
For example, even after posting something as seemingly harmless as a reassuring photo of yourself on Facebook and saying “I feel so much better” after your accident, a defense attorney may use that to argue that you weren’t badly injured and aren’t entitled to much money.
If you must maintain your social media activity, consider updating your privacy settings so that only pre-approved persons can view your posts. If someone you don’t know contacts you, ignore them or be wary of such contacts until your case is settled. Courts even have allowed defense attorneys to use fake accounts to gain access to a person’s online information.
Some might suggest you should delete anything on your social media that might be used against you. If you suffered a neck injury in a wreck, you wouldn’t want posts available from before the accident in which you complained of neck pain, right? Then your injury might be dismissed as pre-existing.
However, deleting any such posts would subvert your legal “duty to preserve” when it comes to evidence. “Counsel and client may be subject to sanctions for a failure to preserve relevant evidence,” the ABA says — including social media.
Also consider running an Internet search of your name just as the defense attorney would do — that is, “Google” yourself. If you see anything that might undercut your case, don’t try to remove it but be sure to alert your attorney.
Now you may be wondering, is social media evidence legal? After all, isn’t much of what you write and show online personal?
In truth, social media evidence has repeatedly been deemed admissible in court cases, despite objections such as privacy claims, since social media itself provides no legitimate expectation of privacy. Objections also have been dismissed when claiming lack of authentication, since the truthful testimony of the person who made the post can cite its authenticity.
Even when the defendant denies authenticity, the court can rule otherwise. In 2012’s Tienda v. State, the Texas Court of Criminal Appeals supported authentication of social media evidence in a case involving a shooting.
At trial, the state had presented printouts from a MySpace profile that implicated the defendant. An appeal was made on the basis that such evidence was not authentic, but the appeals court ruled that the state had “presented sufficient circumstantial evidence to authenticate the MySpace pages and postings as those of the defendant.” Thus, social media was evidentiary.
So consider anything online as fair game — even if it’s circumstantial — and don’t rely on privacy settings as a protection. As the ABA puts it, “social media content is subject to discovery, despite the privacy settings imposed by the account user.” In fact, password access to private accounts has been granted in some cases as an evidentiary measure.
Finally, be sure to ask your friends and family not to share any information about your condition, especially online. Comments about your injuries that your friends make on social media can be just as bad as if you’d posted them yourself, especially if they cite you as a source.
As for how to replace social media in your life if you’ve put them on hold for self-protective legal reasons, many means are available.
To connect with others, have you considered the old-fashioned but long-meaningful route of writing a letter or a note? Even better, you can call friends or loved ones to reassure them about your condition — or visit them in person.
Provided your personal letters and calls aren’t shared, that leaves no public record of your condition after being injured in a car crash — no record which could be misconstrued or used out of context to claim your injury wasn’t worth your claim.