Social Media and Personal Injury Litigation

Social media has become a common platform for people to stay in touch with friends and family.  According to recent figures, more than one billion people use Facebook, and millions more use platforms such as Twitter or Instagram or many other services.  What most people do not think about is that what they post online will likely become available to the defendant if you file a lawsuit seeking compensation for personal injury, medical expenses, or other damages which you believe were caused by another's negligence or wrongful conduct.   And don't be fooled into thinking that using privacy settings will matter.   Many Courts are ordering that social media content be made available to the defendants in civil litigation regardless of privacy settings.    

The average person considering a lawsuit, or who is already involved in a lawsuit, may ask -- "why does this matter?  It's not like I'm going to post comments about what my lawyer told me and violate an attorney-client privilege.  I'm not even going to comment on the lawsuit on Facebook."  The answer is that it may still matter a lot, even if you just stick to mundane posts that do not comment on your lawsuit.  

One common way that people use Social Media is to post photographs of themselves on vacation, at the beach, at a birthday party, at dinner, or engaging in other fun events.   It is just a fact that people tend to post pictures of themselves smiling, having fun, looking like they don't have a care in the world.   If an alien civilization came along and started looking at Facebook photographs to get an idea of how we all live, they would probably conclude we are the happiest species in the galaxy.  That's because few people post pictures of themselves on a day they are feeling extreme pain, or visiting the doctor's office, or feeling so down in the dumps from their condition that they don't leave their home, etc.   What's more, most of us can look "happy" for long enough to pose for a photo, even if we're not in the greatest spirits at that moment.  No one wants to frown for a photograph!   And most people do not want to project to the world that they have bad days, too.   So they post photos or comments about the good times, and keep the not-so-good times to themselves.

With that in mind, here is how this topic matters in the context of a lawsuit.  Assume you have filed a lawsuit following a serious car accident.  You are in daily pain.  You have $50,000 in outstanding medical bills or health insurance liens.  Your life has been changed dramatically by your injuries, but you are not the type to give up on life because of some pain.  You want to try to live the most normal life you can.  So you make yourself go to the beach or an amusement park with friends or family and try to enjoy some time with them, even if it's sometimes difficult.  You can still go to dinner.  And you can still post photographs of those events, most of which will probably show you with a big smile on your face because that's just what people do when someone points a camera at them.  Now imagine that the Court in your case orders you (or the social media site) to turn over all of those social media photographs during the "discovery" phase of your personal injury case.   One photo shows you smiling in front of a roller coaster at an amusement park a few months after your accident.  Another shows you at dinner with friends (smiling, of course).  At trial, the defense starts putting some of those photographs on the big screen and says to the jury, "does this look like someone who is in severe pain?   Does this look like someone who has had her life turned upside down by her injuries as she and her lawyer are arguing?"   Think about what effect that may have on your case. You may know that you were actually in pain when those photos were taken.  You may know that you did not ride the roller coaster that day because of your pain, or that you went home after dinner and had to lay down for 12 hours.   In short, you may know that those pictures do not fairly represent what you've been through, and that they in fact present an overly rosy impression of your life.   What about all of the hours you spent getting painful physical therapy, or laying down during the day because you were having trouble sitting or standing?  Of course you can try to explain that the jury, but a picture is worth a thousand words.  Your desire to live a normal life and "grin and bear it," and your desire to appear "happy" to friends and family, can be used against you at your trial.  The jury may see the photograph of you smiling with friends, and think you're exaggerating your injuries at trial.

If you are in any kind of litigation, you should assume that anything and everything you post online, or have stored on your smartphone, will get into the hands of the party you are suing.   Before you post to social media while you have a lawsuit pending, consider whether you want the jury to see that content, and how it could be taken out of context by a clever defense lawyer.