You were in an accident.
A bad one.
You were hurt pretty bad.

Or so you said.

Maybe your doctor was careless.
His wrongdoing caused you harm.
Permanent harm.

Or so you said.

When you bring a lawsuit seeking compensation for the harms, losses and damages you suffered because of someone's carelessness, the people you sued don't really know if what you're saying is true. They don't know anything about you...yet. But they will.

They will dig up every piece of dirt they can find on you.
They will scour your background.
They will examine your medical records with a fine tooth comb.

They will search the internet, high and low, for anything they can find about you.
That includes all of your social media.
Facebook. Twitter. Instagram. Snapchat. LinkedIn.

They will look at all of it.
No matter your privacy settings.
They will wheedle their way into your friend network usually by an investigator they hire.

Once there, they will delve deep.
They'll have the details of what you're claiming was done wrong.
They'll have details of what injuries you claim you suffered.

Then they'll start searching.
Searching for texts.
Searching for photographs.

Searching for videos.
Especially anything that you posted after getting injured.
Even if you didn't post a photo or video directly.

They will look for any photos or videos in which you're tagged in.
If you sent a photo to your friends about hiking up that mountain after your accident and you claim you can't hike or play basketball because of your injury, you've got some explaining to do. Especially if your friend posted that photo somewhere online and tagged you in the photo. There's a good chance that photo still has all the metadata attached to it including where the photo was taken and when.

But you aren't aware of any of this.
All you know is that you started a lawsuit.
You ignored your attorney's warning not to put anything on social media about the details of your case or your activities after you were injured.

You figured your attorney didn't know what he was talking about.

You figured your privacy settings would make all of your postings private.
You figured that nobody would be able to access your photos, videos and text for anything you posted after your accident.

You neglected to tell your lawyer about your posting activities.
When you were questioned at your pre-trial question and answer session known as a deposition, you were asked lots of questions. Questions about your current activity level. Questions about things you can and can't do now. Questions about what you're limited from doing now because of your 'permanent' injuries.

You swore to tell the truth.
You swore under penalty of perjury.
Your attorney believed you.

The defense attorney appeared to believe you as well.
But he knew better.
He knew you were being less than truthful.

But he didn't confront you yet.
He simply locked you into your testimony.
He wanted to make a solid record.

He wanted you to commit to what you claim you can no longer do or do with difficulty.
He wanted to find out from you, in your own words, what you can't do anymore.
You said, without any hesitation, that you can't hike anymore.

You said you can't play basketball.
You said you are unable to play football.
These are YOUR words.

You made these statements voluntarily.
You made these statements thinking they were true at the moment.
You said these things while giving sworn testimony in your attorney's office.

You never once considered what would happen if the defense knew you posted those pictures on Facebook after the accident. You never considered what would happen to your case if the defense lawyer saw those videos of you playing tackle football. It never even crossed your mind.

Those were private posts...or so you thought.

After your deposition, the defense hired a private investigator to try and catch you on video doing those activities you claim you can't do anymore. You never even saw the guy following you on two separate days. At the same time, the defense lawyer sends a demand letter to your attorney.

"We want access to your clients' social media accounts, including all private postings for a year before this accident."

Your lawyer calls you up and asks if there's anything there he needs to worry about.
You bluff and say "Of course not."
"I'm going to fight this request," he says.

The problem is that the defense knows something your attorney doesn't.
They tell the judge they have reason to believe you posted photos, videos and texts about your activities after your accident. You of course denied doing any of those activities after your accident. The judge rules in favor of the defense lawyer. That means your attorney must now provide your login information for your social media accounts limited to one year before your accident up till the present time.

Your attorney wants to know what's in your account.
He calls you into his office and you go through your Facebook account.
He finds it.

He's upset.
He's very upset.
"You had a good case," he says to you while struggling not to scream and yell.

"Now you've screwed up your case big time," he tells you sternly.
You try and make light of it.
"What's the big deal?" you say lightheartedly.

"It's just some stupid posts about what I was doing at the time," you say.
"That's exactly the point!" your attorney yells.

"Now the defense will find this and you're screwed," your lawyer says.
"What if I delete it before the defense has a chance to see it?" you ask sincerely.
Your lawyer has steam coming from his ears.

"DON'T FREAKIN' TOUCH ANYTHING. UNDER NO CIRCUMSTANCE ARE YOU TO DELETE ANY POSTS!" your attorney screams. If you do that, you're intentionally destroying evidence. That's even worse than what you've already done.

What you've done is destroy your credibility.
Maybe you can explain.
Maybe you can explain how you were trying to do those activities even with pain.

You might have a reasonable explanation about how and why you posted those photos and videos doing those activities. Maybe you couldn't bear to sit around all day doing nothing. You wanted to try. Your friends wanted to capture those moments and share them online, feeling proud of your attempt to overcome your disabling injuries. Like I said, there may be a rational explanation.

At trial, the defense will most certainly use that information against you.
You'll have to explain it away and will have to do it first.
You cannot ignore it, hoping the defense won't attack it.

They will and they will tear you apart if you fail to mention it during your testimony.

To learn more about posting on social media during your lawsuit, I invite you to watch the quick video below...

Gerry Oginski
Connect with me
NY Medical Malpractice & Personal Injury Trial Lawyer