Social media is a big part of modern life, but if you’re not careful it can have a negative impact on your case. What you put out there on social media can be subpoenaed and brought into the settlement negotiations or into the courtroom as evidence.
From the moment you begin your personal injury case it may be wise to go silent on social.
What can social be used to prove?
One of the things we try to show in your personal injury case is how your injuries have impacted your quality of life. Certain social media posts can make it look like your quality of life is just fine.
This is especially true of illnesses like chronic pain or chronic headaches. You know you have good days and bad days, and anyone who knows anything about chronic pain knows that’s how an invisible illness works.
Yet if the insurance company can show a jury photos of you at a big party then they might conclude you aren’t really in pain, and that you don’t really deserve pain and suffering damages. They might assume you’re malingering to try to get more money.
Of course 90% of cases don’t go to trial, but these sorts of issues do come up in settlement negotiations as well. Your lawyer says, “Our client can’t go to work any longer, he’s in too much pain.” They say, “Here’s a social media post that says he was at a party 2 weeks ago. Why can your client bear the pain long enough to go to a party when he can’t bear the pain enough to go to work?”
In addition, it’s not uncommon for friends and family members to create problems on social media too. They tend to play “telephone” about the facts of the accident. This in turn may lead them to dropping comments on your own profile which contradict the facts of the accident.
Rest assured the defense can find ways to use that against you.
Remember, too, that a lawyer has to tell a story in a courtroom or at the negotiating table. Whoever tells the best story tends to win their case.
Stories don’t always lend themselves to nuance or complexity. What seems like an innocent social post to you can be enough to disrupt the narrative and to lose your case.
What if you had problematic pre-accident posts?
Problematic pre-accident posts are most likely about pre-existing conditions. For example, if you were in chronic pain prior to the accident and you’re posting about it now then it can complicate your case. Your lawyer might be able to make a case that says your chronic pain has been exacerbated, but it may be difficult, if not impossible, to draw a clean line from your accident to today’s pain and suffering.
Unfortunately running in and deleting all those posts isn’t going to help. Nothing’s ever truly gone on the Internet and there’s a good chance defense investigators will find a way to dig up those posts.
In this case the best thing you can do is to talk to your lawyer about these posts so your lawyer can plan how to work around them.
How should you handle your social account?
It’s important to note that “locking” your account or messing with the privacy settings won’t help at all. If the case goes to trial and your social media records get subpoenaed all that information will still be wide open to defense lawyers.
Instead, stop posting. Instruct your family and friends to avoid posting photos or conversations about you on social media sites. Tell your lawyer about any problematic posts that you’re worried about.
The defense is looking for anything they can find to increase your liability, claim you engaged in insufficient damage mitigation, or to decrease the legal impact your accident has had. Don’t do their job for them by posting an indiscriminate flow of information on social sites. Sometimes even seemingly harmless things can hurt your case a great deal.