Social media is woven into the daily life of our clients and should be a point of discussion and diligence when addressing their cases. The Pew Research Center reports that the U.S. population are heavy and frequent users of sites like Facebook. In early 2018 they found that over 68% percent of the population uses Facebook - and roughly 74% of those users log in daily.
It’s no surprise that people turn to social media for support and/ or attention after an accident. I mean, it’s only natural to post photos of your car crash on Facebook.
With the younger population also reporting frequent use of other platforms like Snapchat, WhatsApp, Instagram, and Twitter, there is a great deal of public content available from the average client. In a personal injury case, this can be problematic, especially with the complexity of the privacy settings on these platforms.
In this article, I will discuss the negative effects that social media can have on personal injury cases and how to advise your client accordingly to avoid any mishaps.
In a personal injury case, the credibility of your client is key. If there are physical limitations that are being considered, their integrity cannot be challenged by public posts showing them engaging in activities that would be inconsistent with their injuries.
In the discovery process, it is not uncommon to field requests for social media posts. Even claims for damage from emotional distress can be weakened by a photo of a claimant having innocent fun. In the 2016 case of Shandy Rachel Garrison v. The Estate of Eugene Phillips, “Social Media and Facebook Posts” were listed on the exhibit list for the trial. These went unchallenged and led to the plaintiff being completely discredited on the stand, and losing her case.
Legal firms, law enforcement, and insurance companies now employ a savvy and thorough process in combing through a plaintiff’s social media records. It’s simply a part of good representation to address this with a client.
It is prudent to work with your firm to have a protocol in place for clients. The most popular platforms will always have a significant percentage of users that don’t understand the privacy settings. Reuters’ poll, this year, found that about 23% of Facebook users, 65% of Instagram and only 58% of Twitter users know how to fully use their privacy settings.
No matter the age or internet savviness of your clients, it is vital to remind them at the beginning of their case that all of the communication and postings that they make on Facebook or other social media, texts or email, may be subject to discovery.
They should be aware of what they post or write at all times. Suggest the following:
Check privacy levels on accounts, and reset them to the highest levels. Advise others to not tag or mention them in posts or comments. It is nearly impossible to lock down the privacy for the network of contacts we all have on social media.
It is important to review current friend lists and not accept unknown new friend requests.
Cut down on or eliminate social media usage while the claim is open. It is also nearly impossible to be completely vigilant about our comments on public pages or posts. Emphasize that it’s not just their personal page that needs scrutiny - it’s also the public trail they leave as they visit other pages or posts on the platform.
Do not discuss any aspects of the case or the nature of injuries - this includes medical treatment or progress.
When it comes to social media platforms, the simplest solution may be to just “go dark” until a settlement is reached.
As attorneys, we must also be just as vigilant about our social media use. Our name is highly visible, and it often takes just a few minutes to track down our accounts on LinkedIn, Instagram or others. It’s our duty to not discuss any particulars or engage in other acts that could compromise us ethically or affect the success of our client’s case.
Social media links may inadvertently affect an attorney-client relationship, disclose confidential information, or portray us in an unprofessional light. Research on and subsequent application of high-level privacy settings on our own accounts will help us understand and best advise on the labyrinthine levels of security that exist on social media.
From the outset of the case, the use of social media should be discussed with and addressed by our clients. It is now a predictable component of the discovery process and can be used to discredit and devalue the legitimacy of their claim.
It is unlikely that clients completely understand the scope of how far even innocent posts of comments and photos can spread across the public realm. It is also unlikely that they comprehend how to effectively lock down the privacy of their various accounts.
Responsible representation means that we must be cognizant of how social media works, and that we also employ prudence in our own social media use. It’s better to assume the world is watching, and behave like it in these very public and popular forums.
Scott Distasio is an auto accident attorney in Tampa. In February of 2006, he founded the Distasio Law Firm, which focuses on all types of personal injury cases. He wanted to open a practice that represents his belief that all firms should provide outstanding service to their clients and help them obtain the highest attainable compensation for their claims. They hold the responsibility to provide the community with outstanding service in high regard. To see what legal wisdom Scott shares next, follow @scottdistasio on Twitter... View full business profile here: Distasio Law Firm
