Personal Injury Litigation: Advising Your Client About Discovery and Social Media
Jeffrey Lowenthal on 3/15/2017
In personal injury cases, defense attorneys frequently request access to the victim's social media accounts. As the American Bar Association (ABA) notes, the defense is often granted this access as part of discovery.
Both plaintiffs and defendants are able to use discovery to 'investigate' the opposing side. In modern personal injury cases, social media has become a big part of discovery. To be on the safe side, your clients should simply assume that anything that they post on social media will eventually end up under the microscope in the courtroom. Of course, this is not always true, but it is better to be safe rather than sorry.
Lawyers representing plaintiffs in personal injury cases need to be proactive in advising their clients of the risks inherent in social media. Lawyers should advise clients to avoid posting anything that can be used against them, even if the defense can only do so by taking their post out of context.
More specifically, lawyers should provide their clients with the following advice with regard to social media posts that could adversely affect their personal injury claim:
Posts about your case: Anything you post on social media that directly pertains to your case can be brought up in the course of personal injury litigation. As such, you should never post anything about your personal injury claim. Do not post anything regarding conversations you have had with your attorney or anything regarding conversations you have had with the insurance company. While social media is designed to let you share what is going on in your life, you need to keep quiet during active litigation.
Posts about your physical condition: You should also avoid making posts about your medical treatment, physical condition or your recovery. This is true even if you are not making the post in direct reference to your case. Unfortunately, what you say can, and often will, be taken out of context by the defense. For example, imagine that you were injured in a car accident, and that you are now undergoing physical therapy. If you make a social media post about how a therapy session "went well" and you are "happy with your progress" the defense may try to use that post as evidence that your injury is not actually that bad. This can be incredibly frustrating, as understandably you may want to share your progress with your loved ones, without it being used against you. Still, you need to be ready for what you will be up against.
Photographs: You should assume that any picture of yourself that you post on social media will be reviewed and potentially used as evidence in your personal injury case. A simple picture of you smiling and enjoying a day at the park could even be spun into a narrative by the big insurance company's defense team. Far too often, victims post seemingly innocuous photos without considering how they might be viewed by the opposing party.
Getting tagged in posts by friends: Finally, posts made by your social media friends can also potentially be used against you. This includes both photographs and text. Until your claim is resolved, you should ask your friends, family, co-workers and acquaintances to avoid posting anything about you or your case.
The Best Advice You Can Give Your Client: Stay Off of Social Media Until Your Case is Resolved
When it comes to social media and personal injury litigation, the best practice is to simply stop posting. Certainly, a client should never post anything about their case, their medical treatment or their recovery. However, beyond that, in far too many cases, personal injury victims inadvertently damage their own claim by making a post that they feel is totally unrelated to their injury or condition. Ultimately, the best protection is to temporarily suspend all social media accounts until the claim is completely settled.
Jeffrey Lowenthal is the founding and managing partner of the Pennsylvania personal injury law firm of Lowenthal&Abrams. He focuses his practice on personal injury cases, including auto accidents and slip and falls.
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