At Rosenberg, Minc, Falkoff & Wolff in New York, when we interview a new client who has been injured, it is extremely important to discuss their activities on social media. Many clients do not understand that everything on their social media page can be used against them. For example: If a client says they are disabled and there are photographs showing them in a bathing suit standing by a beautiful swimming pool with friends have a good time with no care in the world, that image posted during the trial, arbitration, or mediation very often reduces the sympathy factor that can often decrease your compensation. We recently represented a client that was severely burned and suffered from extreme sensitivity to direct sunlight. In New York State, the discovery rules permit your adversary to download and examine your social media content. This includes Facebook, Twitter, and even photographs on your cell phone. There is nothing that throws more cold water on a disability claim than smiling pictures taken out of context. (As the old adage goes, “A picture says more than a thousand words.”) And a personal injury attorney really doesn’t want to be in a position of having to explain away photographs that contradict the pain and suffering that the client has gone through. At Rosenberg, Minc, Falkoff & Wolff in New York, we recently had a deposition where a client claimed that he had difficulty remembering things after a head injury and wrote notes on his cell phone yellow pad to jar his memory. That statement immediately prompted a discovery demand for the client’s cell phone. They had it analyzed by a forensic technology expert to see if there were any such notes, even if deleted, to verify our client’s claim. Years ago, insurance companies would hire a private investigator to hide in a van in front of a client’s home and film them and follow them. With new technology that’s not even necessary because they can dig through your own social media profile and files to acquire information about your activities and whereabouts and spy on you without the need to hire a private investigator. So, we advise clients to avoid posting on social media anything that involves statements of where you are traveling or photographs of your lifestyle because they will be taken out of context and used by the insurance company to diminish your claim. Unfortunately smart phones geo tag many photographs by location and any reasonably confident technology expert can outline and document your travel simply by looking at the photographs you have taken. Unfortunately our experience at Rosenberg, Minc, Falkoff & Wolff is that our clients often forget these advisories and warnings because of their habits and routine of being intimately involved with social media. Remember, there is plenty of time for social media postings after your case is concluded. Don’t harm your case by posting photographs of yourself because they will be taken out of context and they are legally discoverable by the insurance company in New York State.
Why does Social Media Matter?
For a personal injury claim to be effective in New York, the victim must be able to prove that there was another party involved whose negligence resulted in the accident. A skilled insurance adjuster or defense lawyer will leave no stones unturned looking for evidence to prove no-fault on behalf of their client or at least limit the claim. And social media is the very first place they will start digging. The insurers and the defense team will be looking for evidence that helps contradict your claim. For instance, let us assume your personal injury claim is that you suffered a back injury in an accident caused by another party. Now, if during the investigation period, you post an image of yourself on social media that shows you mowing the lawn just days after the crash, it could spell disaster. The defense team could use it to question your integrity and your injury claim in the courtroom. You need to understand that all claims are not settled in mediation and if the case does go to trial, social media acts as a potential weapon to discredit the veracity of the claim. This could also be used to limit compensation for medical expenses, lost wages, and pain and suffering. Excessive sharing on social media presents unique risks, even before the incident occurs. For instance, your entire personal injury claim could be jeopardized if you shared your binge drinking episode on social media the night you had your accident. It is best that you avoid social media completely during the claims process to ensure the most favorable outcome. This includes everything from blogs, updates, pictures, videos and tweets, to any other shared content.
Ways to Protect Your Claim from an Onslaught on Social Media
Twitter, Facebook, and other online networks’ privacy settings often fail to provide adequate protection during investigation of an injury claim. It is quite common for insurance adjusters to use anonymous accounts to spy on victims. Here are few ways you can protect your claim outcome while using Twitter and Facebook:
- All tweets are public unless they are protected under settings. These can be seen by anyone, even the ones who don’t have a Twitter account. (Change this by clicking the “Privacy and Safety” tab under “Settings and Privacy”. Check “Protect my Tweets” in the Privacy section.)
- Don’t fall into the trap created by the “friends of friends” loophole. It is not uncommon for insurance adjusters and defense attorneys to gain access to your private posts by friending one of your other Facebook friends. (You can prevent this by editing the section How People Find and Contact You” under “Privacy Settings and Tools”.)
We also recommend the following measures in addition:
- Never delete any suspicious or old content. This can come across negatively in front of a judge and jury. Always consult with your attorney before you decide on deleting anything.
- Make sure you deactivate the geo-location feature on all downloaded apps. Yelp and other popular apps can automatically enable your phone to check-in or communicate where you are. Never leave a trail of previous locations for the defense attorney to chart your movements.
- Your friends won’t necessarily know that you need to limit your social media presence. Take care of your interests by disabling tagging features.
- Avoid following or joining any new pages or groups. Online socialization has been frequently used as an argument against injury claims.
- During the injury claim investigation, refrain from accepting new friend requests and followers.
- Don’t post any content related to physical activities, traveling or new purchases.
Real-life Examples of how Social Media can Jeopardize Personal Injury Cases
These are some real-life examples of social media risks for personal injury lawsuit outcomes. Slate.com published an article explaining how real-life images of injured victims on Facebook unintentionally harm their own court case. How social images of dancing can wreck a case
Fotini Kourtesis made a legal claim after being involved in a rear-end collision stating that she was no longer able to wrestle or dance with her brother. However, there were pictures posted on Facebook after the accident of her brother lifting her in the air. Unsurprisingly, the pictures did not go down well with the judge who ruled against her. This clearly demonstrates the need for plaintiffs to be extra careful with social media posts. The judge did not care that the scenes were posed carefully for the camera after the incident. Whether the pictures were fake or not was immaterial. The photos showed that Fontini was enjoying an active social life which greatly undermined her claim of “loss of enjoyment of life”. Even messages from friends can ruin your injury case
Slate.com highlights another story of a former general manager by Home Depot who sued for gender discrimination. Her legal claim used language that indicated isolation from friends as a result of wrongful termination. Her Facebook account was scoured by Home Depot’s legal team who literally found dozens of messages wishing her a happy birthday on her Facebook wall. Shockingly, the lawyers argued that so many Facebook messages would not be received by a socially isolated person. The takeaway – if you are injured, use extreme caution while using social media.
Your Social Media Profile’s Public Portion Can Be Viewed by Litigators
Social media guidelines of the New York State Bar Association underscore the fact that defense lawyers can view public social media profiles and posts, even if the victim is represented by another lawyer. Your right to privacy ends when you let your profile become public or make a public post. You should strongly consider making your posts and profile private during a personal injury case. The New York Court of Appeals on Feb. 14th
, 2018 ruled unanimously that certain portions could be accessed by opponents in a lawsuit even if the Facebook profile was private. This means you could be required to hand over private posts and photographs that may be deemed relevant to the lawsuit.
Talk To Your Lawyer before Deleting Harmful Posts
It is better you don’t post any information in the first place if you think you would have to delete it later. Your lawyer is responsible for ensuring that that no potentially relevant information is destroyed in anticipation of litigation. You could attract a penalty for violating the duty to preserve evidence during a lawsuit. You can delete evidence as long as there is no legal barrier. However, it is best to speak with your attorney immediately to discuss whether you can delete potentially damaging content or not.
Talk To Your Lawyer before Adding New Information
As long as the new information is not knowingly untrue, your lawyer would advise you on matters regarding posting of new social media content. Your lawyer cannot help you post misleading and false information that are helpful or relevant to the claims you made. As a general rule, always seek your lawyer’s advice on posting new content on social media and never publish anything that you know is false. This dishonest strategy is likely to hurt your claim in the long run.
Additional Tips for Personal Injury Victims in New York
Here are some additional social media tips to help you avoid legal pitfalls that could potentially sabotage your personal injury lawsuit in New York. Tip #1: Keep a Printed Record of All Your Social Media Accounts
You can make it a lot harder for the defendant’s legal team to threaten you with any evidence they claim to have by downloading complete records of your accounts. Physical records are a poignant way to contradict untrue claims of social media activity. For this reason, make sure you download historical social media activity and print hardcopies of it. Tip #2: Keep Your Activities and Location Under Wraps
Most social media networks have ‘checking in’ and other features that disclose a person’s whereabouts and activities. You need to avoid using these features at all costs while your lawsuit is ongoing. Any information regarding your whereabouts or your activities can be twisted and used against you to damage the claim. Avoid giving the defense that chance. Tip #3: Don’t Discuss the Lawsuit on Social Media
This may seem obvious, but you need to make a conscious effort to not
talk about your case at all on social media networks. It can get difficult since your family and friends may want updates. But, you need to leave those updates for offline conversations. From a legal perspective, it is unnecessary to post updates and opinions about your lawsuit. In fact, doing so may just harm your case and compensation outcomes. Tip #4: No Case Related Discussions even through Private Messages
Any discussion regarding your health or the status of your lawsuit should be reserved only for your attorney. You need to stay away from social media private messages. And, under no circumstance should you discuss any part or aspect of your case on these platforms.
Get in Touch With a Personal Injury Attorney in New York Today!
Personal injury lawsuits can be highly complicated. Therefore, it is in the best interests of victims that have suffered an injury due to the fault of another to seek legal counsel from a capable and experienced personal injury lawyer in New York. A skilled attorney will take care of all the multiple aspects of your personal injury lawsuit. This includes filing the lawsuit handling trial or mediation (as appropriate) to pursue maximum compensation amount. The attorneys at Rosenberg, Minc, Falkoff & Wolff have been defending the rights of personal injury victims for decades now. We are experienced in handling the legal intricacies involved in such cases and bring forth our knowledge and resources in pursuing maximum possible compensation for each one of our clients. The New York personal injury attorneys at Rosenberg, Minc, Falkoff & Wolff law firm offer free case reviews as part of an initial consultation to individuals who have suffered injuries due to another party’s fault. Give us a call today at (800) 660-2264 or contact us online
to determine if you may be entitled to legal compensation.