Should Plaintiffs Stay off Facebook?

If you have been injured as a result of someone else’s actions, whether or not you have consulted or retained a Las Vegas personal injury attorney, you need to be careful what you post to Facebook and other social media sites.

In the chronology of a typical injury claim, first the victim is injured, then the victim seeks medical and/or legal help. At a certain point, a claim is made with the at-fault person’s insurance company, and if a mutually satisfactory settlement can be reached, the case is settled and over. If not, the attorney files a lawsuit on behalf of the client, and litigation ensues.

More often than not the parties reach a settlement during litigation, but in some cases an arbitration or trial becomes necessary to have a third-party decide who owes how much to whom.

At any point in this process—starting from when the injury occurs to when the case is finalized, the opposing party, its insurance company, its attorney, and/or its privately retained private investigator may be scrutinizing your life to find any evidence that your injuries are not what you say they are.

One of the best resources for anyone investigating anyone else is Facebook and other social media sites. Generally, because the information you put on Facebook is intentionally meant for the public, there are no rights to privacy that might otherwise protect you.

Even if you do have your settings set to the maximum privacy Facebook allows, there are investigative techniques that can pierce those settings and get at your information. In response to a motion from the other party, a court may order that the information be disclosed, which order could be used to compel Facebook to disclose your information, including deleted information.

Some plaintiffs are convinced that as long as they are being truthful in their case and on Facebook, it doesn’t really matter what they post. And although honesty really is the best policy, and the integrity of your case will be much better, don’t underestimate the opposing party’s ability to misinterpret or misconstrue something you post to Facebook.

You’ll be in a much better position advocating for yourself in your case than having to explain certain posts or photographs, which puts you on the defensive even if there is a good explanation for what you posted.

Additionally, sometimes there may be posts that make you look better or worse off than you are that don’t necessarily bear directly on your case. Consider these two examples:

  • As a result of your injuries, your family life has been adversely affected. Because your pain is relentless, you have a shorter temper, and your marital and other family relations, though still good, are strained, etc. But you have photographs on Facebook that show you with your family, and everyone looks happy. Even though no one ever claimed your life is completely miserable such that you can’t even smile in pictures any more, the opposing party will try to use these photographs to show you have not been affected, and that you have a happy family life.
  • You take several pictures where you are holding an alcoholic beverage (or what appears to be one), and the opposing party uses the photographs to show you are an alcoholic (a conclusion they may not explicitly make, but merely imply to the jury).

These are among the most benign of photographs that could be used against you. You’d be in a much worse position if you were actually engaging in activities you claimed you could not do (another reason to just be truthful from the beginning).

I had a case once where a man claimed he was so injured that he could not work, was forced to retire, and couldn’t even manage to travel anymore his back hurt so bad.

Thanks to Google and Facebook, we discovered (weeks before trial) that he had started a new company, was traveling to do business, and had just taken a trip with his family to a resort in Mexico.

With this information, we were able to reopen discovery and take his deposition again. He voluntarily abandoned his claim for wage loss as a result, and then even though he was demanding millions of dollars in settlement, the jury gave him nothing.

The best thing you can do is stay off of social media during the pendency of your case. And shut down your account so others are not tagging you or posting to your wall. However, because to some social media is not something they can do without, at least be very circumspect about what you post. Even what seems innocuous could hurt your case. If in doubt, speak with your attorney about what may or may not be an appropriate post.

 

Zachariah B. Parry is an attorney and founding partner at the law firm Parry & Pfau and is an adjunct professor who teaches torts, contracts, and Nevada practice and procedure for UNLV’s paralegal program. He can be reached at 702-912-4451 or zach@p2lawyers.com.