Whether it’s from watching hit TV shows like “Law and Order” or “Cops” — or you’ve heard it elsewhere — you’re probably familiar with the following language taken from the Miranda warning given by police to criminal suspects in custody: “You have the right to remain silent. Anything you say may be used against you in a court of law.”
Well it turns out that the same holds true for what you post on social media.
Too bad “Law and Order” didn’t teach people that…
It’s true that when you file an insurance claim or a personal injury lawsuit, one of the first things the insurance company or defense attorney will do is search your social media accounts for any posts that could be harmful, or incriminating, to your case.
With that in mind, here are 5 tips you should follow to avoid weakening your case through the use of social media.
Tip #1: Set your social media accounts to private
The best thing for your case is to avoid using social media altogether while the case is pending. With that being said, it’s not always easy to quit social media cold turkey.
Making your social media accounts “private” is the next best thing. Doing so won’t guarantee that outside parties can’t view your account, but it will limit the possibility.
Tip #2: Don’t accept friend requests or approve follower requests during your case
The Model Rules of Professional Conduct (which are adopted by most states) prevent attorneys and their staff from contacting represented parties without the consent of their attorneys. In some states, this includes sending a “friend” or “follower” request to a represented party.
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Though it’s arguably unethical, some attorneys (and insurance claim handlers) nevertheless attempt to “friend” or “follow” parties in a lawsuit.
Bottom line, avoid accepting friend requests and approving follower requests while your insurance claim or lawsuit is pending.
Tip #3: Don’t discuss your case online
Even if you set your account to private and avoid accepting friend requests and approving follower requests, you should still avoid discussing your case online. Even seemingly innocent statements could be used against you in a deposition or at trial.
Rather than trying to figure out how everything you post might be used against you, it’s best to simply avoid posting about your case altogether.
Additionally, it’s wise to caution your friends and family members to refrain from posting about your case or tagging you in any posts or pictures while your case is pending.
Tip #4: Don’t discuss your injuries, treatment, or anything related to physical activity or travel
If your lawsuit alleges that you were injured, the insurance company or defense attorney will look for any evidence that your injuries aren’t as serious as you allege. For this reason you should avoid discussing your injuries or treatment in your social media posts.
You’ll also want to avoid posting anything related to physical activity or travel. The following summary of a New Jersey personal injury lawsuit illustrates why this is important:
In 2007, an 18-year-old man was doing pushups in a fire department driveway. A police car pulled into the driveway and struck the man. As a result, the man allegedly suffered a fractured femur and was in a state of constant pain. He sued the police department.
An attorney for the police department asked his paralegal to send the plaintiff a Facebook friend request. The paralegal did so and her request was accepted.
Upon reviewing the man’s account, the attorney found videos of the man partying, wrestling, and travelling during the period of time he claimed to be in constant pain. Predictably, the attorney brought the videos with him to the man’s deposition where he grilled the man about how he was able to dance, wrestle, and travel while in a state of constant pain.
While the case ultimately settled, the plaintiff likely didn’t recover the amount of damages he would have recovered had he avoided posting on his social media accounts.
Tip #5: Assume that everything digital can be recovered
Don’t post something about an accident and assume you can just delete it once you file a lawsuit. Security experts caution that deleted information online never really disappears.
Deleting social media posts in the context of a lawsuit is called spoliation of evidence, which can harm your case.
In addition, it’s important to recognize that all digital forms of communication are potentially recoverable. This means all social media posts, but it also means emails and text messages, which can be subpoenaed from your telephone company or email provider.
If you have any doubts about how your electronic fingerprint might impact your lawsuit, talk to your attorney.
Can insurance companies and defense lawyers access my private social media?
Learn whether insurers and defense lawyers can access your private social media posts during a lawsuit and how to preserve your privacy.