Imagine if every time you clicked “Post” on Facebook or Twitter, a box popped up to warn that “anything you tweet or post on Facebook can and will be used against you.” That might sound extreme, but if you’re involved in a legal proceeding, it isn’t far from the truth!
In today’s interconnected world, where every little event becomes a shared public experience online, social media content is frequently being used as evidence in courtrooms — and not just in criminal cases.
In fact, in many civil cases today there are a lot of instances where social media evidence is being used by the defense to attack the legitimacy of your personal injury claims. That includes auto accident cases, premises liability cases, insurance claims, medical malpractice cases, and other civil litigation disputes.
As New York personal injury attorneys, we now caution all our clients about proper social media usage before, during, and after a legal proceeding.
We find that people are often surprised to learn that even seemingly innocent or irrelevant social posts can prove damaging to their legal interests. In this blog post, we’ll take a closer look at how social media can affect a claim.
“Private” Is Not the Same Thing as Invisible
Invariably, when we warn new clients about social media, they tell us, “Don’t worry — we have our privacy settings on lock.”
They’re being honest about that, but the problem is that most social media outlets make it impossible to truly secure your social media posts. Social media outlets are constantly changing their privacy settings. One day your social media account is private and the next day it is not. If you are not on top of these changes, your information will not be as private as you believe it to be.
Past and current content is almost always accessible to people who really want to find it. And trust us, the lawyers on the other side of your case really want to find it. They’re very good at getting it too.
Some parties in civil litigation (like insurance companies or the insurance company’s defense attorneys) even employ people whose job duties specifically include scouting for social media evidence to help their case.
Timelines Are Not the Same Thing as Actual Reality
If you’ve spent enough time on Facebook, for example, you know that people’s status updates don’t always reflect real life to a T. For that matter, your feed might not be a perfect mirror to your life either.
There’s nothing wrong with that, but you can expect the opposing party to twist your words, use your pictures out of context, and otherwise cast a false light on your social media activity.
This is why social media in personal injury litigation is such a major concern because even the most harmless of posts can become extremely misleading.
Consider a claim for emotional distress. What if you claim to have been suffering psychologically for months, but your Twitter timeline appears to paint a very different picture of the same time period?
Or in the alternative, say you have a claim that say that you cannot work because of your injuries, but your Facebook feed shows your being active playing sports or on vacation.
You and I know it’s possible to suffer emotionally and/or physically while still remaining positive online — and courts know that too — but this kind of evidence can still become incredibly devastating to your claim.
There is nothing more frustrating to accident victims than, after already suffering enough from the injury itself, learning that their own words and photographs are being used against them unfairly.
Be Careful Not to “Destroy Evidence”
Once you’re involved in a legal proceeding, you can actually get in trouble for making changes to your social media profile.
While this is a graver concern in some kinds of cases than others, it is never a good idea to modify any past/existing social media content that might be relevant to your case (and as we’ve explained earlier, almost all of your content is potentially relevant).
When a Tweet Is a Waive: The Danger of Destroying Attorney-Client Privilege
As a general rule, communications between you and your attorney are privileged under New York law (in other words, neither you nor your lawyers can be compelled to reveal what you’ve said).
It is possible, however, to “waive” this privilege. The most common kind of waiver happens when a client reveals the contents of those communications to a third party. Your social media followers count as a “third party.”
If you accidentally disclose something you discussed in private with your attorney, you run the real risk of losing this very important legal protection!
Outside of the Personal Injury Realm (Criminal, Creditor, Etc.)
Because we’re writing as New York personal injury attorneys, we have prepared this article primarily with civil tort litigation in mind - New York automobile accident cases, premises liability cases, medical malpractice cases, etc. But we also want to point out that social media can affect criminal cases, debtor/creditor disputes, tax controversies with the IRS, worker’s compensation cases, and more.
It’s always a good idea to exercise caution and restraint in your social media postings, especially if you are involved in a legal proceeding. When you have questions, always ask your legal representative.
How to Handle Social Media During a Lawsuit
The best advice for preventing social media from impacting your legal case is simply to avoid using social media altogether until your case is completely resolved.
If you do choose to use these forums, here are some general guidelines on how to handle social media during a lawsuit:
Post as little as possible.
Apply maximal privacy settings on every account (but realize that you will have to be keeping up with any changes in the privacy settings made by the social media outlet).
Do not post photos or text that might be construed as inconsistent with your current claims - even if the photos are old and were taken before your accident!
Never, ever post anything about your case or the allegations online.
Remember that apps like iMessage, Facebook Messenger, etc. are not necessarily secure.
Avoid social media “check-ins”
Don’t post anything about your physical, emotional, or financial state.
Keep all communications between you and your lawyers 100% private.
Do not attempt to communicate with the other side by using social media.
Always follow your attorney’s specific instructions, even if they contradict what we’ve listed above.
Get Strong Legal Representation on Your Side From A New York Personal Injury Attorney
Many New York plaintiffs have lost their lawsuits because of their social media activity. It is in your best interest to take these concerns seriously. Insurance companies and other defendants will scour the internet to find anything they can use against you.
Your best protection against unfair legal arguments or evidence are: (1) common sense and (2) aggressive legal advocacy by an experienced team of New York personal injury attorneys. That’s where we come in.
If you have any questions, our New York Personal Injury Attorneys will help you through the process of filing a claim, and we will fight for your right to compensation. Call and speak to one of our New York Personal Injury Attorneys at 929-400-7608 or via e-mail to learn more about your rights so that we can obtain the best outcome for you.