Will your social media account undermine your personal injury lawsuit?
Social media platforms, such as Facebook, Instagram, Twitter, Snapchat, and LinkedIn have continued to grow with continued technological developments. According to a survey conducted in 2019, 69% of U.S. adults and 51% of U.S. teens use Facebook, while approximately 72% of teens use Instagram. Despite the obvious utility of social media, there are certain precautions that one must take when using such platforms. Surely you have heard it before… “be careful about what you post on social media because everyone will be able to see it.” Generally, such words are spoken to our youth, students, prospective employees, professionals, and the like. However, after suffering a personal injury due to the negligence of another and filing a subsequent personal injury claim, you too must be careful as to the content on your social media page. Additionally, throughout the course of your lawsuit, you must be aware of any images, posts, and comments of friends or family members in which they tag your social media account, thereby making the content available to your social media friends and/or followers.
All Relevant Evidence is Admissible
In Florida, the general rule is that “all relevant evidence is admissible, except as provided by law.” Further, “relevent evidence is evidence tending to prove or disprove a material fact.” Lastly, “relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” As you would imagine, social media content is relevant if it tends to prove or disprove a material fact, such as alleged injuries from a car accident. Therefore, if the image or post is at all relevant to disproving your claims, such as bodily injury, the defense will be allowed to present the evidence to the jury barring and other evidential objection.
Diminishing your Injury Claim is the Insurance Company's Main Goal
In litigation, an insurance company and defense attorney's primary objective is to diminish the injured party's claim as much as possible in an attempt to limit the liability of the defendant. In doing so, it is important to understand that the insurance company and attorney for the defendant will look for, and often find, any and all evidence that may undermine your personal injury claim, including your social media accounts. Such discoverable evidence includes, but is not limited to, social media posts, image uploads, job updates, location check-ins, selfies, status changes, tweets, tagged posts, tagged images, etc.
Surely to you, your social media is intended to be a private means of communicating and staying in touch with friends and family. Unfortunately, your privacy isn't quite as protected as you would hope. To a defendant, defense attorney, and insurance company, your social media presence may provide the perfect evidence to undermine your claims for damages, thus resulting in a lower settlement offer and jury verdict.
What types of damages can your social media presence impact?
As part of a personal injury claim, the injured party generally claims that they have suffered past and future damages as a direct and proximate result of the defendant's negligent conduct. Such damages may include bodily injury, great physical pain and suffering, disability, loss of capacity to lead and enjoy a normal life, inconvenience, physical impairment, disfigurement and scarring, mental anguish, loss of or diminution of earnings or earning capacity, loss of consortium, permanent injury, and all past and future medical expenses.
These economic and non-economic damages are called “Compensatory Damages” and are awarded to restore the injured party to the condition in which he or she was in before the injury occurred. In proving these damages, the injured party, through their attorney, must prove that they suffer from a legally recognized harm, usually in the form of a physical injury. Knowing the injuries to which you claim, the defense attorney will look for any evidence that may suggest to the jury that you are either not suffering at all or that you do not suffer to the extent to which you advocate, thereby diminishing your damages.
A Good Example of Social Media Affecting Your Injury Claim
Picture yourself as the victim of an unfortunate car accident of which caused you a spine injury and extreme emotional distress. You claim that as a direct result of the accident, you are in great bodily pain, have lost your capacity to lead and enjoy a normal life, and are suffering from mental anguish. You finally decide to hire an attorney, you file your lawsuit with the appropriate court, and patiently wait for justice.
In the meantime, you go on a vacation with your friends to Hawaii where your friends plan to hike a few mountains. Instead of staying behind while your friends explore, you decide that you will join them for the adventure. While at the top of a mountain overlooking the ocean, you decide to make your friends and family jealous, so you post a selfie with the caption being “just hiked Diamond Head with my friends. We are having a blast!”. Later that night, you go out for a night on the town. You and your friends take several pictures while you are out, one of which shows you on a dance floor. She uploads it to Facebook and tags you.
Eventually, you return home from your trip and call your personal injury attorney to ask for a status update on your claim. Much to your dismay, your attorney informs you that the defense attorney on your case has found, saved, and printed all the pictures and posts from your Hawaii vacation that you have been tagged in or uploaded. The attorney informs you that he plans to use them against you to rebut your claims for bodily injury, loss of enjoyment, and mental anguish.
Social Media Can Directly Impact Your Personal Injury Case in Court
After several low-ball offers, the case moves forward to trial, and a jury is responsible for determining liability, causation, and damages. The jury must examine all the evidence in determining liability, causation, and the damages to award. At trial, your personal injury attorney pleads to the jury that you have suffered permanent injuries to your spine and that as a result you have lost the ability to enjoy a normal life. Additionally, your attorney explains that you have suffered extreme emotional distress that must also be considered in awarding the damages.
Unfortunately for you, the defense attorney proceeds to show the jury the images and posts that you have put on social media after the accident, including the posts from your hiking trip in Hawaii. The same jury that just heard all about your physical and emotional pain and suffering now sees that you went on vacation with friends, endured the physical rigors of hiking, and that you were having a blast. That claim for physical injury and emotional suffering has been appropriately called in to question and as a result, the jury decides not to award you the compensation you rightfully deserve.
How an Experienced Personal Injury Attorney Can Help Protect You
At Dolman Law Group Accident Injury Lawyers, PA, we acknowledge the difficulties in monitoring your social media account throughout your pending personal injury claim. However, it is imperative that we advise you of the consequences social media may have on your claim. In fact, a single post or image on your social media page may be the difference between a substantial settlement offer and low-ball offer or a large jury verdict and an award of little damages. Despite the possible negative consequences that could result from social media use, we provide you with the necessary information to ensure that your claim is protected.
At Dolman Law Group Accident Injury Lawyers, PA, we suggest that our clients adjust their social media settings to ensure that their profiles are set to “private.” In the “private” setting, an individual must accept a “friend invitation” before allowing them to access your profile. In fact, according to a 2018 study, approximately 54% of Facebook users adjusted their privacy settings in 2018, the vast majority of which were young adults aged 18 to 29 and adults age 30 to 49. After changing your privacy settings, we recommend that you be aware of the individuals seeking access to your profile. Further, we strongly suggest that you only allow individuals that you personally know access to your social media content.
Additionally, at Dolman Law Group Accident Injury Lawyers, PA, we strongly suggest that you be alert as to any posts, images, or comments that are made on your behalf by third-parties, such as friends and family. While that picture that your great aunt Barb posted showing you at your family reunion with a huge smile on your face may not look like much, however, it may be used by the defense in an attempt to undermine your personal injury claim. Throughout the duration of your lawsuit, it is very important that you closely monitor your social media account while also making those closest to you aware of the role their tagged image of you may play in undermining your lawsuit.
Contacting Dolman Law Group Accident Injury Lawyers, PA to Help You
Despite the many pitfalls that social media may play in your personal injury claim, at Dolman Law Group Accident Injury Lawyers, PA, we provide you with the necessary steps in ensuring that you are protecting yourself and your claim throughout the duration of your litigation.Please feel free to contact Dolman Law Group Accident Injury Lawyers, PA with any questions. You can reach us in one of these 3 ways:
- Call Dolman Law Group Accident Injury Lawyers, PA at (727) 451-6900
- Complete this online contact form
- Click the Live Chat button in the bottom right corner of this page
*The above information was written by Attorney Dominic Scavo and reviewed by either Attorney Matthew Dolman or another injury lawyer at the Dolman Law Group Accident Injury Lawyers, PA which has a combined 90 plus years of experience practicing Florida personal injury law. Matthew Dolman himself has been practicing personal injury law in Clearwater and St. Petersburg for the last fifteen (15) years. The information provided comes from extensive research and years of experience trying legal cases in courtrooms throughout Florida.