Silence is Golden When Filing Personal Injury Claims

online socialTechnology has made it so easy to say what we want to say, how we want to say it, where we want to say it, and when we want to say it. However, just because an individual can . . . it doesn’t mean that they should. That is because online communications whether they are Tweets, Facebook posts, Instagram shots, even seemingly innocuous emails are increasingly impacting the results of personal injury cases.

The collection of social media and electronic communication evidence is common in personal injury cases and it is regular practice for opposing counsel to send a preservation-of-evidence letter when they believe such evidence will strengthen their case. They may ask a client to preserve photos of them swimming at the beach, dancing on the table at a party, or skiing the powdery slopes of Aspen. This evidence can be used to show that the injuries a person experienced aren’t as severe as they have claimed in their lawsuit.

While an individual can delete this content, such an action can bring sanction from the court. If the opposing counsel can show that the individual had a reasonable expectation such evidence would be requested, it can lead to charges of contempt, and adverse influence instructions to the journey to consider this action and the information/photos in their decision.

The best way to prevent this from happening is to simply not post anything on social media that could damage an individual’s case. Even innocuous posts should be avoided as these can be used to trace friends or family who may post photos without your knowledge.

It is important to remember that an opposing counsel cannot request a blanket subpoena for an individual’s entire social media history; they can only request information they believe will benefit their case. The judge may or may not agree with this request, and may amend it based on their opinion of what they consider relevant information. While a Wheeling personal injury lawyer can help a client defend against such requests, there are no guarantees such defenses will be successful.

Further, in cases where a company’s privacy policies prohibit them from disclosing this information to 3rd parties, the court may order an individual to request it from the social media provider and then deliver it to the opposing counsel. This is not a violation of an individual’s 5th amendment rights against self-incrimination set within the Constitution.

Social media usage as evidence is a fast evolving playing field. Last year, Patrick Snay was forced to forego an $80,000 settlement in his age discrimination suit against the private prep school in Florida he had been fired from. His offense? His daughter posted information about the settlement to her Facebook feed, thus violating the confidentiality clause of the agreement. Even though she was an indirect party to the suit, the Third District Court of Appeal determined that her sharing knowledge of the settlement was a breach of the agreement.

Also in 2014, Root v. Balfour Beatty Construction in Florida brought the use of social media evidence into the spotlight. In the case, a child had been injured while traveling past a construction site. The mother of the child sued the construction company. The company responded by requesting a broad range of the mother’s social media posts. The court quashed the request, however, it further strengthened guidelines Wheeling personal injury lawyers and insurance companies will follow in the future as they seek such evidence.

Most notoriously was the case of Casey Anthony whose daughter Caylee’s murder remains a mystery. In the Anthony case, prosecutors admitted into evidence photographs from her social media accounts that showed her celebrating and relaxing within days of Caylee Anthony’s death. This evidence weighed heavy on the jury.

Equally as important to note is the modern reality that social media is increasingly influencing public opinion regarding legal cases. While the Anthony case is an extreme example, firestorms of social media attention can bring unwanted attention during the course of a personal injury case.

These discussions can offer clues to opposing counsel that they can then use to exploit weaknesses in a plaintiff’s case. The result can be that even the most innocuous of posts can become a focal point that sways a judge or changes a juror’s mind. Moreover, if the discussion begins before a trial commences, it can make juror selection difficult as the court may consider a potential juror’s participation in these discussions prejudicial. If the juror participates in these discussions while a trial is taking place, it can become grounds to declare a mistrial which can add time and expense to the proceedings.

Does Your case Have Merit?

When you contact Orzoff Law Offices, you will receive a free initial consultation to answer your questions and focus on your goals. Call 847-564-0285 or send us an email using our quick contact form.

captcha