Yes, Social Media Can Affect Your Personal Injury Lawsuit. Here’s How.
The process of searching for evidence during a personal injury lawsuit puts your life on display in front of the court, and unfortunately, that lack of privacy extends to your social media accounts. You can expect that attorneys on both sides will review your social media presence, looking for posts that either incriminate or bolster the claims you’re making in your lawsuit.
Though plaintiff-side attorneys can use social media to their advantage, we still urge all our clients and their loved ones to avoid posting on social media for the duration of their cases. Even with all evidence to the contrary, a single post can affect how jurors view you and your case, persuading them to grant you less – or no – damages. Though there are a few legal protections in place meant to uphold your privacy, almost nothing about your online presence will be off-limits if the defense is strategic enough.
If you’re looking to file a personal injury lawsuit (or have already), it’s important to know just how deeply social media can affect a case. Preparing yourself – and your friends and family – for the adjustments that need to be made to social media habits can help protect your case and prevent a post from hurting your claims.
Need to Know:
- Public social media accounts are available for anyone to view, and any defense attorney will be able to use your public posts as evidence in court. If your account is private, a judge will first need to deem your posts admissible as evidence before the defense can gain access – be aware that a good defense attorney will stop at nothing to obtain your posts.
- Even posts you think are irrelevant to your case can be used to delegitimize your claims, which hurts how much you recover in damages. We highly encourage all our clients to deactivate all accounts during their lawsuit. If they cannot, we emphasize that it’s more important than ever to stop posting and closely monitor their online activity.
- Despite its drawbacks, social media has also proven fruitful when searching for evidence in certain personal injury cases. Videos, photos, and online community groups may be used to help establish negligence on the part of the defendant.
In this Article:
- How Much of Your Social Media Can the Defense Access?
- How Social Media Can Complicate Your Injury Claim
- Countering the Defenses’ Social Media Claims
- Leveraging Social Media to Strengthen a Claim
How Much of Your Social Media Can the Defense Access?
Social media is a fluid area of the law, and new cases continue to evolve how courts interpret the issue. As such, there’s no concrete answer for how much an attorney can rely on social media, but it’s almost a guarantee that he or she will look at it to some degree.
Public vs. Private Social Media Accounts in Law
If your social media accounts are viewable by the public, you have little to no protection from your posts being used by the defense. Anyone can see those posts, including defense attorneys, so if they decide to use your public Facebook posts in court, your attorney won’t be able to stop them.
You are, however, awarded some protection if your social media account is set to private. Though protections vary from state to state, there have been some cases in New York establishing that the defense does not automatically deserve access to a plaintiff’s private social media account. When filing a lawsuit, you are protected from what’s known as a “fishing expedition” — an attempt to gain access to information by any means necessary, without having any reason to believe that the source (in this case, your social media account) contains evidence.
For example, let’s say you’ve filed a personal injury lawsuit, and the defense wants access to your social media accounts. Your accounts are all set to private, so a defense attorney attempts to subpoena the social media company for your posts. If there is no reason to believe you have posted anything relevant to the case on those accounts, a judge will likely deem the attempt as a fishing expedition, and your posts will not be considered admissible. To some degree, this protects the privacy of individuals against mere speculation.
Unfortunately, this protection is not all-encompassing, and a skilled defense attorney will have tactics to get around it. Even posts on private social media accounts may be deemed discoverable if the defense identifies information on the account that may contradict the plaintiff’s claims. And it’s easier than you may think for the defense to do just that.
To return to the previous example, let’s say you’ve been asked to testify at a deposition for your case. A smart defense attorney will use this opportunity to ask you – under oath – if you’ve posted online since the accident. If you have, a defense attorney can now claim that he has reason to access your accounts, and the judge will likely grant permission. It doesn’t matter if your posts do not mention your accident; they can be used as evidence regardless. This is why we tell our clients to avoid social media entirely for the duration of their cases – even private accounts have limited protection.
Other Methods for Obtaining Your Social Media Posts
Overall, there is very little you can hide while you have an ongoing personal injury lawsuit. Even outside of your direct social media accounts, there are other ways for defense attorneys to investigate you online. In fact, our attorneys once handled a case for a client who got married during the course of his lawsuit. As soon as the defense found out, the attorneys subpoenaed the wedding photographer to obtain our client’s wedding photographs. This may feel like a violation of privacy – and to our client, it certainly did – but it’s permissible under the law.
If your account is private, it’s not uncommon for defense attorneys to go around the courts and try to gain access through simpler means. You may notice friend requests from accounts you don’t recognize – this may very well be an investigator for the defense in disguise. As such, you should never accept friend requests from unidentified accounts while your case is ongoing. Only do so if you are certain of the account owner’s identity.
Even if you create an anonymous or secret social media account, that likely won’t work to your advantage, either. Many attorneys today hire independent companies that specialize in investigating someone’s online presence, and these experts can find just about anything. We’ve seen the reports these investigators produce – stacks of documents multiple inches thick, with information on a client’s posts, comments, friends, usage, and more. Nothing posted online, anonymous or not, is ever truly untraceable or erasable.
Pay Attention to Friends and Family Online
You also have to be aware of your family and friends’ online activities. If you’re tagged in a post or even pictured in the background of someone else’s photos, the defense may try to use that against you. One of our clients – a young, active man who loved the outdoors – regularly went on hiking trips with his friends prior to his accident. While his case was still ongoing, he joined his friends for a trip, but due to his injuries, could not partake in the actual hiking. He did not post anything about the trip to social media, but one of his friends did, tagging our client in one of the photos.
The defense managed to find the friend’s photo through these tags, using it as evidence that our client was not as injured as he claimed. Even though our client did not go on the actual hike – nothing he claimed in the lawsuit was being contradicted – the secondhand post was enough for the defense to try and build an argument to counter our claims.
This is far from the only time a friend or family member’s social media post has been used against our clients. We see it all the time. It’s why we tell our clients over and over that the best type of social media is no social media, at least during a case. And if deactivating all accounts isn’t an option, we at least advise all clients to avoid posting on social media altogether.
How Social Media Can Complicate Your Injury Claim
It may not be clear how exactly the defense can use social media posts to hurt your case in court. After all, social media rarely reflects reality – it’s a platform many of us use for fun, and hardly paints a full picture of someone’s life. But reality or not, anything you post can come with disastrous consequences for your legal case.
Diminished Awards
Social media posts can significantly reduce a client’s chance at receiving a favorable settlement or jury verdict – our attorneys have seen it happen before. The defense will use even seemingly innocuous posts to try and show a judge or jury that a plaintiff is misrepresenting the extent of his or her injuries.
It seems extreme that a single post could sink a case, but if a video or picture of you seemingly contradicts any of the claims you’ve made in your lawsuit, it can destroy your credibility with a jury. Credibility is everything at trial, and if it’s lost, it can be impossible to regain.
For example, let’s say you claim in your lawsuit that the accident has disabled you from work and you’re looking to recover lost wages. While the case is moving forward, you post a picture that shows you performing a simple physical task, like opening a door with your injured arm. Even if the door was incredibly light, and even if it hurt to perform such a task, showing that picture to a jury may instill doubt in the jurors. Thus, the chances of the jury ruling in your favor are weakened.
Case Study: $3,258,000 Jury Verdict for Client Injured in Forklift Accident
It’s impossible to know exactly how a jury will react to your social media posts, which is why it’s always a risk to post them. Take one case our attorneys handled, involving a delivery driver struck by a forklift while making a routine stop at a supermarket. He suffered catastrophic injuries to his leg that caused lasting pain and weakness. Though his injuries were significant enough that he could not work the same job, he was still able to walk and move about, albeit through pain.
Pain, however, is not always visible, and when this client posted pictures of himself at a barbeque with his girlfriend, it would not have been immediately obvious that he was suffering. Based on that picture alone, it would be easy to assume that our client was managing fine post-accident. Our attorneys knew the truth – for all his smiling and enjoying his time at the barbeque, he was in pain, struggling with mounting medical costs, and unable to find work that his body could handle.
The case went to trial, where the defense showed these social media posts to the jury, trying to highlight that our client wasn’t as injured as he claimed. Our attorneys, anticipating this move, made sure to present the jury with as much evidence as possible that would counteract the defense’s attempts to instill doubt. This meant using expert testimony, medical records, and economic reports to highlight the true impact of our client’s injuries. Ultimately, their diligence paid off – the jurors returned with a $3,258,000 verdict, allowing our client to cover his medical expenses and get back on his feet.
While experienced attorneys know how to address the extra challenge of social media evidence, it doesn’t mean it was safe to post these pictures. A juror may have seen the posts and assumed that our client’s life was perfectly fine, with no need for monetary damages. It requires extra time and effort to make sure that the client maintains his or her credibility with the jury. In the end, it’s better to mitigate the risk entirely by avoiding social media.
Attacks on Character
Social media isn’t only used to destroy the credibility of your legal claims. It can also be used to hurt your own credibility in court. Not all juries will be swayed by attacks on your character, but anything that can call into question your integrity may be used against you by the defense. Even something you meant as a joke can be interpreted poorly in the wrong light.
For example, our attorneys once handled a case for a client whose comments on a friend’s social media post could have been used to hurt her reputation. She had been joking with a friend back and forth in the comments, but some of the jokes, when taken out of context, made our client appear reckless and insincere. Had this case gone to trial, these comments could have easily been used against our client to make her look less reputable in front of the jury.
It may be a relief to know that social media activity from before the accident is not admissible in court. A judge is unlikely to rule that your previous posts are relevant to your case – you do not need to worry about everything you’ve ever posted online and how it reflects on your character.
Countering the Defenses’ Social Media Claims
Because we so often see defense attorneys attempt to use social media as evidence, our attorneys have developed strategies for countering the defenses’ claims. Social media evidence does not have to be insurmountable, as long as your attorney understands the details of your accident and the depth of its impact on your life.
Highlight the Reality Behind Social Media Posts
Many of us use social media to share an idealized version of our lives, a reality tinted by rose-colored glasses. As such, it may be hard to explain to a jury that someone’s life is shattered if their social media does not reflect this. But this can be used to a plaintiff attorney’s advantage – if social media doesn’t reflect reality, how can it be a reliable source of evidence?
Take one client that our attorneys represented, who was seen online in a post that showed him smiling at a family member’s graduation ceremony. Though the picture looked cheerful, it wasn’t the full story. So, when the defense tried to use it to refute our client’s claims, our attorneys brought up everything the picture left out. It didn’t show the struggle he had commuting to the ceremony, the pain killers he had to take to be able to get through it, or the hours of rest and icing he needed after it ended. It simply didn’t show the everyday impact of his injuries.
Another case handled by our attorneys added another layer to this problem – how do you show the depths of someone’s suffering if their injuries are not physical? Moreover, how do you do it when that same person posts habitually to social media, showing off his successes and achievements?
Case Study: $30,000,000 Jury Verdict for Victim of Childhood Sexual Abuse
The facts of this case were grim. At just ten years old, our client, a 53-year-old husband and father of two, began being groomed by his fifth-grade teacher. This eventually culminated in a series of sexually abusive acts that continued for more than three years, until our client was 14 years old. The psychological trauma was immense, compounded by the fact that our client received minimal psychiatric treatment and confided in only a few friends and family members.
Though that trauma never left him, our client built a life for himself outside of his pain. He had a successful career, a wife, and two teenaged daughters at the time he came to our attorneys seeking help with his case, looking to finally bring his abuser to justice after so many years.
From the outset, our attorneys knew that social media might pose a problem in this case. Because the abuse had occurred so many years ago, everything our client had posted online for the past four decades was discoverable. And, despite words of caution from the lawyers, our client continued posting on Facebook regularly, even after investigation for the case began. These posts shared everything from details of his vacations to successes in his career to milestones in his family life with his friends and loved ones. This meant that, at trial, the defense had an extensive pool of content to pull from, attempting to use these generally positive posts as proof that our client lives a carefree life.
To counter this claim, our attorneys wanted to highlight how poorly social media actually reflects reality. The first step was asking our client to testify about the psychological impact of the abuse and how it has followed him all his life. Our client made sure to emphasize on the stand that he – like many others – only posted the good things to social media. He’s not sharing details of his trauma in lengthy Facebook posts or posting pictures of him breaking down and crying because of his past. Yes, we acknowledged, social media tells a particular story, but that story isn’t complete. It doesn’t show the bad days, the time in therapy, the fear, the shame, the stress, or the suffering.
The second step was to retain the right experts who could speak about the lifelong scars left on victims of childhood sexual abuse. Emphasizing that traumas like this don’t simply go away, no matter what someone may post, helped demonstrate the reality of what our client faced to the jury.
To not acknowledge that our client had experienced great success and joy in his life would have hurt our credibility with the jury – any juror can plainly see that our client has many genuinely positive things in his life. So, our attorneys addressed it directly, then countered with the fact that these successes cannot erase what was done to him. That pain and suffering are still very real. The jury agreed, issuing a $30,000,000 verdict – believed to be the first jury verdict under the Child Victims Act in New York.
Focus On the Facts
The defense can try as much as it wants to diminish your pain, but if we have the right medical records and testimony, it can’t deny the reality of your injuries. Using social media as evidence is based on speculation – speculation about how someone is feeling or thinking based only on a picture. Someone may look perfectly happy in a photograph but feel miserable. So, it’s best to focus on what we can prove – the extent of someone’s injuries, the cost of medical care, and other impacts that we can draw on experts to discuss.
To see this in action, just look at the previous case. Our attorneys were able to show, through meticulous investigation and preparation, just how thoroughly the abuse affected our client’s life, despite his positive Facebook posts. Drawing on therapy records, witness testimony, and psychological experts helped our lawyers reveal the extent of the injuries, even though they weren’t visible.
Or take the case of the delivery driver struck by a forklift. When the defense tried to use photos of our client at a barbeque as proof that he wasn’t suffering, our attorneys countered that a picture doesn’t tell the full story. It may have captured a moment in time, but it doesn’t reveal anything about the pain in our client’s leg and the fact that he was struggling to find work. Focusing on what can be proved helps counter the defense’s speculation, because you put the work in to finding the right evidence.
Leveraging Social Media to Strengthen an Injury Claim
As much as we urge clients to avoid social media, there are ways your attorney can use social media to bolster a case. For all its faults, social media isn’t only a tool for the defense – your attorney may benefit from it as well.
Video Evidence
Video footage provides as objective a view as possible of the accident, and social media can be a great site to find such footage. Our attorneys have been able to locate videos of accidents without needing to file FOIL requests or obtain documents from the police, which tend to be lengthier processes than a simple online search.
In one of our recent cases, we represented a client brutally struck by a car while crossing the street. Someone on the other side of the road just happened to be recording at the time and managed to capture the entire accident in his video. He posted it to TikTok, where it made its way back to the family of the victim, who showed it to our attorneys. Though it’s a horrific video, it gave our attorneys access to some crucial evidence for the case. Not only did it capture the painful details of the accident, it also plainly shows that the pedestrian walk sign was in our client’s favor.
Though there was a traffic camera on this roadway that supposedly captured the accident, it’s much more difficult and time-consuming to obtain footage from the NYPD. It can take some time for government entities to respond to FOIL requests, and police departments can’t always give an attorney access to the data they need for security reasons. The TikTok video of our client’s accident sped up the investigation and gave our attorneys solid, irrefutable evidence.
Streamlining Investigation
Since the advent of social media, it has become much easier for attorneys to connect with people who may have relevant evidence for a case. Online community groups, like Facebook groups, Reddit threads, and other forums, can point an attorney to new sources of information. Neighbors will often post about community issues, like drivers speeding down roads or traffic signs hidden by debris. Our attorneys investigate online spaces to find these posts, looking for relevant facts and insights that can bolster a case.
Even without a dedicated forum, people may still share complaints online. In one instance, our attorneys were investigating an accident that occurred at an intersection where a stop sign was obscured by a bush. The defendant driver had claimed that the stop sign wasn’t visible, causing the accident. If this were true, then our attorneys may have had a case against the municipality responsible for maintaining the shrubbery.
But the municipality can’t be held responsible for a poorly maintained stop sign if no one had been made aware of the issue beforehand. The municipality needs a chance to resolve the problem before a lawsuit can be filed. So, our attorneys started searching for proof that the proper entities had been notified – and some of that proof ended up coming from social media.
A reporter had posted a video of that same intersection, noting that the sign was obscured and commenting on how many cars drove through without stopping. Our attorneys managed to track down that reporter and use his video as evidence during the case. This, paired with the relentless work our attorneys did going door to door talking to community members, helped us build enough solid evidence to name the municipality as a defendant in the case.
Pre-and Post-Accident Photos
We often ask clients to share pre-accident photos with us to show the effects of an accident in a way other than just words. One of the best aspects of social media is how much it widens the pool of available photos. Going through someone’s Facebook page can reveal hundreds of pictures, many of which celebrate and share the high points of a client’s life.
Showing these pictures to a jury helps the jurors picture just how much someone’s life can change after an accident. They also highlight what has been taken – pictures of someone enjoying sports, hobbies, jobs, and more can contrast sharply with the client a jury sees at trial. It can be hard for jurors to grasp just how severe of an impact an accident can have on a victim’s life. Our attorneys want to show, in full visual detail, what their clients have lost.
Free Legal Consultation
Navigating personal injury lawsuits can be confusing. If you have any questions about any aspect of a personal injury case, don’t hesitate to reach out to the attorneys at Block O’Toole & Murphy. Our proven, compassionate attorneys serve clients throughout New York and New Jersey. Contact us by calling 212-736-5300 or filling out our Contact Form for a free legal consultation.