It is not strange nowadays to see everyone around you with their eyes glued to their smart phone or tablet. The internet and social media are almost an addiction for many. But if you are involved in a personal injury lawsuit, you need to be careful using Facebook, Twitter, and other social media outlets. It is widely known that defense attorneys and insurance adjusters find ways to follow and investigate litigants using social media. Usually, the goal is to find a way to contradict your claims. Sometimes they are actually successful. Your personal injury lawyer will no doubt recommend that you avoid social media, at least for a while.
Your comments and photos can destroy your case
Assume you have filed a lawsuit claiming an injury to your back, following an auto accident. What type of damage do you think it would cause if you post a photo of yourself installing your child’s new playground set? Maybe an innocent tweet about your upcoming ski trip to Colorado or the marathon you ran that weekend. Insurance adjusters and defense attorneys are well within their rights to use these photos and comments as evidence against you. Contrary to what you may assume, your comments on Facebook, for instance, are not necessarily private. That is especially true, depending on the nature of your privacy settings. Don’t forget that you cannot control the settings of your friends and others who redistribute your information.
Take a break from social media while your suit is pending
Ultimately, you don’t want to give the defense anything they could potentially manipulate or misrepresent in order to damage your personal injury case. Don’t forget, the goal of the insurance company is to pay as little as possible for your claim. The best thing to do is take a break from social media while your case is pending. Otherwise, you could easily, yet unknowingly, jeopardize your chances for a successful outcome to your case.
Facebook page used to discredit depression claim
Consider the case of Sarah Tambosso. She was involved in two car accidents and claimed in her lawsuit that the accidents lead to her depression. She described her life after the accidents as being sad and that she had become a “homebody.” However, her credibility came into question after pages from her Facebook account showed Tambosso in various social settings, including attending costume parties, river tubing with a group of friends and performing in karaoke competitions. Obviously, these activities were “completely inconsistent” with someone allegedly suffering from psychological trauma, as the court ultimately found.
Are social media posts reliable evidence?
Despite the rising trend in litigation of using social media posts as evidence, the question remains whether or not these posts should be considered, for example, a reliable barometer of a claimant’s emotional state. The reality is, people often use Facebook as a way to “keep up appearances.” In many cases, the so-called “evidence” from social media is nothing more than a snapshot of what the person wants the public to see or know.
Why Tambosso’s case may have been different
In Tambosso’s case, she claimed to have been a vibrant, active woman before her car accident in 2008. As a result of the accident, she claimed to have suffered from PTSD and depression. These alleged symptoms were then aggravated by another collision in 2010. The judge in her case was not convinced, considering the photos of Facebook which showed that Tambosso continued to attend social events and maintain a “very active social life” following the accidents. The court concluded that her injuries were exaggerated and limited her damage award to $36,000. She appealed the ruling.
Social media evidence that disproves certain “facts”
While it is certainly possible that the court or a jury could misconstrue some Facebook evidence, there are still situations where postings on Facebook, Twitter and other social media outlets may be relevant. For example, if a plaintiff testifies that his injuries prevented him from playing with his children, but there are several pictures on Facebook showing the plaintiff carrying his daughter around on his back and playing soccer with his son after the accident, those photos would be relevant to disprove the injury claims.
Personal injury lawsuits and privacy
Whenever you file a lawsuit of any type, you should be prepared to lose a certain degree of privacy. Defense attorneys will ask questions during the discovery phase of litigation that will most often seem intrusive. In fact, the defense attorneys have the legal right to require that you turn over your financial, medical and employment records. While these methods may seem like an invasion of privacy, it is a normal part of the litigation process. Your personal injury attorney can advise you on how to handle these questions.
If you have questions regarding elements of proof, or any other personal injury concerns in Arkansas or Missouri, please contact the Cottrell Law Office for a consultation, either online or by calling us as (888) 433-4861.
He is licensed to practice law in the United States District Court for the District of Kansas, eastern Arkansas, western Arkansas, and western Missouri. He was Deputy Prosecuting Attorney in Crawford County, Kansas from 1987-1989.
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