We tell injured victims the moment they walk into our office that under NO circumstance are they to post anything on social media about how their incident happened and their injuries and activities.
We give them a written document to reinforce and confirm that they are not to post anything on social media. During the course of the litigation, we again reinforce how important it is not to put anything on Facebook, Twitter, LinkedIn, Google plus, Instagram, snap chat and any other place online.
I have spoken to some attorneys whose clients have done this.
Here is their rationale...
“Oh, I didn't think the defense would ever find these pictures.”
“It was just one or two times when I was hiking up a mountain and I wanted to share this photograph with my friends.”
“These pictures disappear instantly and there is no possible way the defense will ever find them.”
That line of thinking is so misguided and misplaced.
When an injured victim brings a lawsuit seeking compensation from a careless driver or an incompetent doctor, the defense actually hires investigators to dig up as much dirt on you as possible.
They look for all possible public accounts that you have. They will do endless Google searches on you. They will scour the Internet for all of your social media postings.
Importantly, they will look to see if you have any comments or photographs about any of your activities after you claim you were injured by their client. They will also look to see if you have posted any comments about the incident itself that led to you getting injured.
If they find juicy information to use against you, they will not tell you about it until it's too late for you. In fact, they will spring the trap on you later when you give pretrial testimony during the course of your lawsuit.
In some cases in the past, an injured victim has been forced to give the defense access to their social media accounts. In other cases, depending upon which county you are in, courts have prevented defense attorneys from going on fishing expeditions in an attempt to try and find contradictory information on social media.
In many cases, the defense attorney has to have a reasonable basis to believe that you have posted incriminating evidence on social media in order to make a request for access to a social media account.
Guess what? It doesn't.
Your comments and photographs are saved on servers somewhere throughout the world. If the defense finds some indication that you had at one point posted information that contradicted your claims, they might ask a judge for permission to request detailed documentation from the company that hosted whatever social media platform you are using.
There have been many injured victims who have fallen into this trap of making comments that contradicted what they were claiming in their lawsuit. Not only does that hurt their credibility, but will often destroy their case.
During a pretrial question-and-answer session, known as a deposition, the defense attorney will ask you hundreds upon hundreds of questions about how your incident happened. He will then ask you what injuries you suffered as a result of your incident. He will then ask detailed questions about what you are no longer able to do since the time of your injury.
What you limited from doing?
And then, he might even ask very specific questions based upon the results of his detailed investigation.
As an example, if after your incident you posted pictures mountain climbing and hiking, he might ask you what type of activities you are no longer able to do today. If you claim that you are limited in what you can do, he might ask you whether you can go mountain climbing. If you answer no, he will confirm and lock in that testimony so that you can no longer wiggle out of it.
Once you have confirmed multiple times that you were physically incapable of doing any type of mountain climbing and have not done any mountain climbing since before your injury, that is when he will spring the results of his social media investigation on you.
If you think this is the exception, you are wrong.
This happens every day in accident cases, medical malpractice cases and even wrongful death cases here in the state of New York.
Using social media is just one tool the defense uses to try and show that you're being less than truthful.
The instructions we give our clients are clear-cut and simple.
Not to Facebook. Not to Twitter. Not to LinkedIn. Not to Instagram, not to snapshot, not to google plus or any other social media currently in use today. Our fascination with posting updates of what we do on a daily basis has for many, become an addiction.
However, when it comes to a lawsuit where you are seeking compensation because of someone else's negligence, your credibility is everything in your case. Once you have destroyed your credibility, you run the very real risk that you will have destroyed your case and a jury will simply not believe a word of what you have said.
The case involved a woman who suffered a significant injury to her foot as a result of improper medical care. The case took three years before coming up for trial. The trial attorney, who was different than the attorney who handled the case up to trial, did his own online search and found photographs of this woman on Facebook hiking through the mountains.
So what's the big deal you ask?
During the course of the discovery phase of a lawsuit, the defense had not yet learned of this photograph or this information on Facebook. They clearly had not questioned her about this Facebook posting, but it was clear to the trial attorney that by now they would have done their Internet search and located this information.
Instead of establishing a credibility problem during her pretrial testimony, they would definitely use it during the course of trial.
This was one reason the attorney chose to withdraw from the case in addition to the fact that his medical expert was no longer able to justify she had a valid case.
The bottom line is that if you suffered an injury here in New York and have chosen to hire an attorney and bring a lawsuit on your behalf, under no circumstance should you be posting anything to social media about your incident, your injuries and how the injuries have affected you and your daily activities. If you fail to listen to this simple basic instruction, you run a significant risk that you will destroy your own case.
You should also know that in the written instructions I provide my clients about the requirement not to post anything to social media, I also tell them that if I find that they have posted comments or photographs of social media and online about their incident, their injuries and their activities, then I will withdraw from their case.