Social Media and Plaintiff’s Personal Injury Cases
The ubiquitous presence of social media in our daily existence worked its way into personal injury litigation many years ago. With apologies to Kipling, the White Plains accident attorneys at Worby Vecchio Edelman LLP employ this mantra: May the twain never meet.
The Dangers of Posting on Social Media Platforms for Accident Victims
As of 2019, there were 2.45 billion monthly active users on Facebook, (https://www.statista.com/statistics/264810/number-of-monthly-active-facebook-users-worldwide/). In June 2018, there were 100 million people using Instagram each month (https://www.statista.com/statistics/253577/number-of-monthly-active-instagram-users/).
For many people, the use of Facebook, Instagram and other social media platforms is a daily experience. Social media is critical in today’s business world, and can add a great dimension to our personal lives. We want to take this opportunity to warn you of the dangers that the use of social media can pose for accident victims who bring claims to recover for their injuries.
An insurance company will use whatever means available to defeat a personal injury claim. Sometimes the insurance company can claim that the accident was the plaintiff’s own fault, or at least that the plaintiff’s own negligence contributed to the occurrence. When the issue of liability is clear, an insurance company might claim that the injury is not serious, or if it is, that it was not caused by an accident. At other times, the insurance company might argue that the plaintiff is not sincere in his or her description of the pain and suffering caused by the accident.
Google Search Inquiries and the Discovery Process
One of the first things that an insurance company or its retained attorney will do when a claim is assigned is a Google search on that plaintiff. The idea is to find out everything possible about that plaintiff, which will (hopefully, from the insurance company’s standpoint) help in any way to either defeat or at least cast doubt upon the plaintiff’s claim. During the discovery process, defense attorneys will request authorizations for access to a plaintiff’s private Facebook account. The New York Court of Appeals recently upheld such a request.
Imagine this courtroom scene: A plaintiff offers testimony listing the activities in which he can no longer partake due to physical restrictions from an injury. The plaintiff is convincing, and the testimony is compelling; the jury is persuaded that this plaintiff not only suffered an injury, but a number of years later still feels the effects of that injury. The jury believes that this plaintiff is the “real deal”, and starts to consider the amount of the damages award. A defense attorney then starts to cross examine the plaintiff, and introduces into evidence Facebook photographs of the plaintiff engaging in activities which he has already stated, under oath, that he is unable to do. The results are devastating. The jury now believes that the plaintiff was either lying, or at least grossly exaggerating the extent of his injury all along. It is a blow from which the plaintiff cannot recover. The case is either lost, or at best valued at a much lower number.
Of course, in most cases, the plaintiff is not lying at all. For example, he might have testified that he was unable to work out as he did prior to the accident, and then posted photographs of him doing just that, offering a pictorial narrative of his painful road to recovery. Using another example, maybe you’ve testified that the pain following an accident prevented you from joining in social activities, and that is the truth – you no longer go out with your friends, and you’ve had to decline many an invitation. Yet, you posted photographs of you at your nephew’s college graduation in California. That’s good enough for a defense attorney to argue that you were well enough to travel 3000 miles across the country, which must have entailed lifting luggage, or even wheeling it through an airport, even though you testified at a deposition that you were unable to lift things, and had restricted range of motion due to a shoulder injury. You may well testify in response that you did nothing of the sort, that you simply went to be with your family.
It may not matter, because the optics are horrible. Even if a jury were to believe you, the posted Facebook photographs in the above example leave the jury with an element of doubt, and create an unnecessary issue for a jury to consider.
Our advice is simple. Don’t post anything on social media during the pendency of your case. If you must have a Facebook account, use it to view another user’s content; don’t create your own. You’re creating an issue, and sometimes snatching defeat from the jaws of victory.
Contact the Accident Attorneys at Worby Vecchio Edelman
Litigation is a grind, and is not for the faint of heart. The accident attorneys at Worby Vecchio Edelman LLP know what it takes to successfully handle a personal injury case. We’re always willing to settle a case if we can, but all cases are prepared with an eye toward the ultimate trial. We have the experience and the know how to represent you in any type of personal injury case. Call us if you’ve been hurt in an accident. We’ll answer all of your questions, and make sure you understand the entire process. We work on contingency, so there’s never a fee unless we recover money for you.