We’ve all heard the “dumb criminal” stories about individuals who engaged in nefarious activity – driving drunk or breaking into a store – only to be caught after they bragged about it to friends online.
It’s well understood that what we post on sites like Facebook or Twitter are public, no matter what our privacy settings. And that’s why a lot of us tend to filter what we say, projecting often our most positive selves and images of our lives. But what is less understood is that when someone becomes a plaintiff in a personal injury case, they may need to prepare themselves for the possibility that their social media profiles will become a go-to source for the defense.
Most people will say, “I have nothing to hide!” And that’s probably true. Yes, defendants are searching for evidence that you aren’t truly as injured as you say you are. Examples might include someone with a severe arm injury shown in a picture bowling with friends or a person with a reportedly severe neck injury riding a roller coaster.
But most people find it surprising the kind of inferences made from seemingly innocuous posts.
Slate.com recently delved into this issue in-depth with an article entitled, “Evidence of Life on Facebook,” by Amanda Hess.
The first example given was in a civil lawsuit filed by a woman who was repeatedly sexually assaulted by a teacher when she was just 15-years-old. She accused the school of failing to protect her, and indicated in her complaint she suffered from severe emotional distress, nightmares and loss of life enjoyment. But then defense lawyers started digging around on her social media profiles. The page contained images that are quite common for someone her age: Pictures of her and her boyfriend, photographs of her and her friends hanging out, posts about her work at a local veterinary clinic and even a few shots of her rock climbing.
But these posts and images, defense would later argue, did not align with plaintiff’s contention that she was suffering from trust issues or loss of life enjoyment. Based on those initial images, defense lawyers were able to convince a judge to order plaintiff to turn over every photograph, video, status update and wall message in her entire Facebook history. The school argued it was entitled to more proof that she wasn’t as truly devastated by this sexual abuse from her teacher (who was convicted in criminal court) as she said she was.
And this kind of thing happens in just about every type of personal injury case you can imagine: Car accidents, swimming pool accidents, construction accidents, product liability cases, wrongful death cases and more.
Another example given by Hess was that of a woman who suffered a serious back injury after her work chair collapsed on her. She later filed a product liability lawsuit against the manufacturer of the chair, and listed among her injuries suffered: Loss of life enjoyment. Defense lawyers wasted no time combing through her social media sites and noted that many of her postings, even since the accident, were peppered with “smiley face” emoticons. This, they said, was evidence she was not nearly as troubled as she alleged.
In another case, another injury victim who alleged increasing feelings of isolation had that claim under scrutiny when a large number of her Facebook friends wished her a “Happy Birthday” on her wall. Of course, we all know those kinds of interactions are cursory and often occur between people who haven’t even spoken in years. It’s not actually a true reflection of self.
But that doesn’t mean defense attorneys won’t try to twist it to look that way.
Our attorneys work aggressively to defend our clients’ privacy and also put these kinds of posts into perspective for the court. People who have been injured are allowed to smile again, they’re allowed to begin the process of healing and they shouldn’t have to worry that every move will be scrutinized. Still, knowing that it’s a potential issue, we often advise clients to curtail their use of these sites significantly while the case is pending.
If you have been injured in an accident, contact the Hollander Law Firm at (888) 751-7770 for a free and confidential consultation. There is no fee unless we win.
Evidence of Life on Facebook, April 29, 2015, By Amanda Hess, Slate.com
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