It is important to note: “What you don’t say can’t hurt you.” When an injured person is considering pursuing litigation, the injured person should consider the following case summary before posting anything regarding the injury online.
In 2011, in a suburb of Atlanta, Ms. Daniels was traveling as a passenger in a sedan that collided with a refrigerator repair company’s work van. The work van turned in front of the sedan. The driver of the sedan slammed on the brakes, but was unable to avoid colliding with the work van. The driver of the work van was cited with failure to yield.
Ms. Daniels was taken to the hospital by ambulance. She suffered a broken right arm and a forehead laceration from the collision. Surgery was required to repair her upper right arm. Plates and screws were inserted in the bone between her elbow and shoulder. Ms. Daniels earned her living as a very successful hair stylist. She couldn’t work while the bone was healing. Once she was permitted to return to work, she was unable to style hair as quickly, had to turn away clients, had to schedule fewer appointments, and could no longer perform certain techniques and tasks because of the pain.
Ms. Daniels sued the driver, and the company, and asked for damages to cover lost wages, diminished earning capacity, medical bills, and pain and suffering. During trial, the defense showed the jury photographs Ms. Daniels had posted to Twitter of her and her friends on a spring break trip to New Orleans and a beach. One photograph showed Ms. Daniels carrying a handbag with her injured arm. In another Twitter post, Ms. Daniels stated, “I’m starting to love my scar.”
At trial, Ms. Daniels’s attorney asked for a total of $1.1 million in damages; however, the jury only awarded $237,000. The defense attorney successfully used Ms. Daniel’s vacation posts to convince the jury she was able to have a full life, and significantly cast doubt on her compensation needs for diminished earning capacity and pain and suffering. Even worse, the Insurance Company’s pretrial settlement offer was higher than the jury award.
Ms. Daniels’ attorney said he had advised Ms. Daniels to be cautious about her social media profile. He believed the defense attorney’s use of Ms. Daniels’ Twitter postings harmed her case. He believed the posts made it seem like Ms. Daniels was too happy and active to be as injured as she claimed.
Social media apps such as Facebook, Instagram, and Twitter are almost omnipresent in our culture. Participation in these sites can have a serious impact on an anticipated or active lawsuit. How and what you communicate on social media and the web, even to your closest friends and family, could have tremendous impact on a pending case. Insurance company investigators and their defense attorneys are increasingly searching profiles and sites for information to embarrass claimants, cast doubt, claim injuries are exaggerated, or claim the injuries were caused by something other than the incident. Defense attorneys have successfully used information found online – even sarcasm between good friends – to paint a plaintiff’s claims as unnecessary, undeserving, or unworthy.
It is important to note that defense attorneys and their investigators are savvy. If you do not have a social media account, it is very likely that someone in your household does. It is likely that the defense will locate and investigate the social media profiles of a plaintiff’s friends and family members. Below are some guidelines and tips that can help protect you.
If you are considering legal action for a severe injury:
- Play it safe. Never post information about a lawsuit online. In particular, do not post photos and status updates of your injury, medical treatment, or any other posts involving you that could be case-related.
- Take a break from posting, chatting, and commenting on public websites. With social media, such as Facebook, choose the most narrow privacy settings on your profile.
- If you have shared something online that could be misinterpreted, then don’t delete it. Make it private (visible to only you) and/or archive it. If you are represented by an attorney, then let your attorney know about it.
- Accept friend requests only from people you know well. Clean up your connections, friend list, and followers. Remove anyone you don’t know. At a minimum, create Friend lists so you can select the friends whom you want to see your information. Certain Facebook privacy settings can be applied by friend lists.
- Remove yourself from Facebook Search Results. Under “Search Visibility,” select “Only Friends.”
- Avoid joining groups, particularly those with compromising names (i.e. “adrenaline junkies”).
- Be very careful about the photographs you post – or allow your friends to post. Something totally innocent could be perceived differently. Avoid posting photographs that predate the incident.
- While it may be out of your control who can tag photos of you, select “Only Me” under who can view your tagged photos; and remove tags applied by others.
The laws pertaining to social networking – and Internet communication in general – are still developing. Be aware that restrictive privacy settings may not protect you from having your social media profile possibly used against you in litigation. Defense counsel can, and often does, request information regarding a plaintiff’s social media profile, including the identities of any “aliases” used for other accounts, and any and all account data for these sites. The best way to make sure something seemingly harmless can’t be used against you is to not post anywhere online during the duration of your case.
Nowadays, with smart-phones, some people instantly post their situation. There are Facebook posts where a person shows his/her crushed vehicle with a comment like “the car is totaled but I’m fine.” Hopefully, that is the case. However, immediately after a crash, a person’s body is coursing with adrenaline, and may feel unharmed. Later that day, the next morning, or even days later, a severe injury from the collision can make itself apparent. A person who was able to walk away from the crash may later be totally incapacitated because of whiplash, a fracture, nerve injury, or some other physical ailment caused by the wreck.
Most people know that the effects of a crash can be delayed. However, do not think that the Facebook post about “being fine” will not be thrown in your face when you are trying to recover your expenses for such things as time off from work, medical bills, and the physical therapy you had to endure for the severe injury. The best course of action is NOT to post online about it.