- July 20, 2021
- Posted by: andreamcmillan
- Category: Personal Injury
The answer is a resounding “Yes!” Social media post about you—whether made by you or others—likely contain a treasure trove of information that the insurance adjuster or lawyer opposing your personal injury claim or lawsuit may use against you. They will check all the social media sites to see what information is publicly available about you. They will search for posts, photos, videos, and other information they can use to destroy, or reduce the value of, your personal injury claim or lawsuit.
Occasionally, an adjuster or defense lawyer may discover social media content unmistakably showing that a person is faking or exaggerating his/her injuries. If that is the case, then the chips will fall where they may.
However, more often, an adjuster or defense lawyer will find truly innocent social media posts, photos, videos, and other content, while combing through an injured person’s social media pages. Quite often, they take that content out of context and twist it, making the argument that your claims of injury and loss are bogus or exaggerated. That argument can effectively destroy–or seriously damage- your claim or lawsuit.
What Is The Difference Between A Personal Injury “Claim” and A “Lawsuit,” and What Tools Can Be Used to Access Your Social Media at Each Stage?
Filing a claim is usually the first step in trying to resolve a personal injury matter. Filing a claim means that your lawyer notifies the responsible party/parties, along with their respective insurance company/-ies, that you will be asserting a claim seeking damages (compensation) for your injuries and related losses.
Your lawyer will gather and present the insurance company/-ies with the documentation and other evidence showing why the party/-ies are at fault for causing your injuries. Your lawyer will also gather and present the insurance company/-ies with all the evidence proving the losses you have suffered, such as:
- your physical and emotional injuries;
- the damage to your vehicle; and
- loss of income
The insurance company/-ies will assign an adjuster to handle your claim. As you receive medical care for your injuries, the adjuster will be reviewing your:
- medical records
- medical bills;
- employment records regarding any lost wages; and
- all other items relevant to your claim for compensation.
When your treating physician determines that you have reached the point of getting as good as you can get (“maximum medical improvement”), your lawyer will send a letter to the insurance company demanding a certain sum of money to settle your claim. If the insurance company is unwilling to settle the claim, or refuses to reasonably compensate you for your injuries and losses, then you and your lawyer will decide together whether it’s appropriate to take the next step, which is filing a lawsuit in a court of law.
The vast majority of personal injury matters are settled in the claim stage, without the need for a lawsuit to be filed.
What Tools Can An Insurance Adjuster Use to Access Your Social Media Accounts During the “Claim” Stage of Your Personal Injury Matter?
Shortly after you assert a personal injury claim, you should presume the insurance adjuster will be searching various social media platforms (Facebook, Instagram, Twitter, TikTok, Snapchat, etc.) seeking information about:
- you;
- the incident/accident itself;
- your life before the accident/incident; and
- your life after the accident/incident.
Because an insurance claim is not pending in a court of law, the adjuster cannot use the formal legal processes available in a lawsuit to discover social media information about you. For example, the adjuster cannot serve you with formal discovery requests to produce information regarding the social media platforms you use, nor can he/she request that you furnish him/her with your login credentials, such as your passwords. Instead, the adjuster is limited to seeking only publicly available social media information about you, by looking you up on various social media platforms.
What Tools Can An Insurance Company Lawyer Use to Access Your Social Media Accounts During A Lawsuit, Which Is Filed in Court?
If your claim has progressed into a lawsuit, then your adversary will be a lawyer assigned by the insurance company to oppose your claim. That lawyer has a variety of legal tools to obtain information about you on social media..
For example, the defense lawyer can serve you with a formal discovery request demanding that you produce the names of all social media sites you use, as well as your log in credentials for those sites. The lawyer can also ask you to produce social media posts, photos, and videos, related to your accident/incident. The insurance company lawyer may even ask you to sign written authorizations or releases directing the various social media companies to directly release all the social media information to him/her.
If you refuse to comply with the insurance company’s lawyer’s request for your social media information, the lawyer can file a motion with the court compelling you to comply. The judge will set a hearing on the matter.
In deciding the issue, the judge will consider what relevance the social media information has to the issues in the case. The judge will also consider what privacy settings you use on each social media site, and whether, and how, those settings relate to your expectation that your postings would remain private.
In Florida, private social media settings will not prevent your posts from being used against you in a personal injury lawsuit. Florida allows broad discovery of relevant information in civil cases. Moreover, courts have ruled over and over that there is no expectation of privacy, even when posting to only a small group of friends.
The Fourth District Court of Appeal, located in Palm Beach County, has stated that even a social media user who has implemented privacy settings cannot reasonably expect his/her posts to remain private. In that regard, the court stated:
Because “information that an individual shares through social networking websites like Facebook may be copied and disseminated by another,” the expectation that such information is private, in the traditional sense of the word, is not a reasonable one. Beswick v. N.W. Med. Ctr., Inc., No. 07-020592 CACE(03), 2011 WL 7005038 (Fla. 17th Cir.Ct. Nov. 3, 2011). As one federal judge has observed,
Even had plaintiff used privacy settings that allowed only her “friends” on Facebook to see postings, she “had no justifiable expectation that h[er] `friends’ would keep h[er] profile private. . . .” U.S. v. Meregildo, 2012 WL 3264501, at *2 (S.D.N.Y.2012). In fact, “the wider h[er] circle of `friends,’ the more likely [her] posts would be viewed by someone [s]he never expected to see them.” …
Nucci v. Target, 162 So. 3d 146 (Fla. 4th DCA 2015).
While most judges will not give the insurance company lawyer complete access to all of your social media postings, they will require you to provide screenshots or copies of posts, photos, and videos that are relevant to your case. Therefore, while you are involved in a personal injury claim or lawsuit, you must be extremely careful about what you post, and what is posted about you.
How Can Posts Made Prior To Your Injury Be Used Against You?
When you file a personal injury lawsuit, you are claiming the event caused you injury. However, many times, there is no objective proof the injury occurred during the event. The only real evidence is your word that the event caused your injury. This means the central focus of your case is often your credibility. If a jury believes you and likes you, then they will rule in your favor. But if the defense lawyer can cast doubt on your claim then you might lose.
Filing a lawsuit opens up your past to scrutiny. This means the defense lawyer might comb through your past, in order to try and find things that contradict your claims. Often, your social media posts are the best proof of your past, because they don’t depend on what other people are saying about you. They are your own words and/ or pictures or videos of you. It is next to impossible for you to deny them.
So, how does this search for damaging social media content often play out in a personal injury case?
Let’s say you claim you injured your back in a car accident and you are making a claim for your injuries. If at any time prior to the car accident, you posted about having back pain, the insurance company lawyer may try and use this post against you. The lawyer will claim that the social media post is proof that your back was already injured at the time of the accident, and that you are just using the car accident as a way to get money for your pre-existing injury.
Of course, your attorney will argue that was an isolated event, and that you did not have ongoing back pain prior to the car accident. But it would be much better for your case, if the post did not exist.
Another example involves claims of emotional distress and or depression. Let’s say you are claiming injuries from a car accident are so severe that your life has been totally changed. As a result, you are suffering from severe emotional distress and/ or depression. Social media photos or comments about how unhappy you were in a particular moment in time–prior to the crash–could be taken out of context, to suggest your emotional distress and or depression existed before the car accident.
How Can Posts Made After Your Injury Be Used Against You?
Some things are obvious. Do not post comments about your engaging in activities that you claim you cannot do, and do not post photos of you engaging in those activities, either.
For example, if you are claiming you can no longer dance, then don’t post pictures of yourself dancing up a storm at the local disco. If you are claiming that you cannot lift heavy objects, posting photos of yourself holding a laundry basket is also not a good idea.
Other things are not as obvious. Remember, a part of many personal injury claims is that lifestyle has been affected. Unfortunately, any comment or photo that discusses or portrays you enjoying life can be taken out of context to portray someone who is not injured. Let’s review another example:
Let’s say, for example, that a negligent driver crashed into you, causing an accident that injured your low back. As a result, you suffer from chronic back pain that sometimes radiates down your leg. You file a personal injury claim seeking compensation for your injuries, including your chronic back pain.
Several months after the accident you post a photo on Facebook doing the “downward dog” yoga pose. In the caption you say how much you enjoy “downward dogging” with your yoga friends.
The insurance adjuster assigned to your claim looks you up on Facebook, and finds the photo. She now believes she has evidence that you are lying about the extent of your injuries, and assigns your case to the insurance company’s fraud unit.
Ultimately, the insurance company denies your claim, forcing you to file a lawsuit which will be defended by a lawyer assigned by the company. The lawyer files a motion to dismiss your lawsuit, arguing that your back injury is bogus, and you are just trying to defraud the insurance company. The lawyer attaches a screenshot of your yoga pose to the motion to dismiss. The judge assigned to your case now gets to see the photo, and will decide whether to throw out your case.
In truth, you are not committing insurance fraud. The truth of the matter is that yoga poses like the downward dog are one of the few things that offer you some relief from your chronic back pain caused by the accident. You have found that yoga helps ease your back pain in a way that medications and physical therapy cannot. However, yoga classes are expensive, and you worry you will be unable to afford them in the future.
Your yoga classes should properly be considered a legitimate item of damages in your lawsuit. Instead, you now face the possibility that a judge will dismiss your case because of the yoga photo. All of this could have been avoided had you just not posted the photo.
Photographs of you out drinking at a bar can be taken out of context to suggest your injury is not as severe as you claim. Similarly, vacation photographs, photos of you smiling, or really anything that shows you engaging in an active lifestyle can be used against you.
Of course, these posts are only a snapshot in time. They do not show the difficulties you may be having the remainder of the time. Your lawyer can argue that the posts are just a small part of your life. However, jurors tend to latch on to social media evidence, as an accurate portrayal of all aspects of your life.
Benjamin Franklin once wisely said that an ounce of prevention is better than a pound of cure. That maxim applies here. It is always better to avoid creating a problem, than having to try to explain away or fix that problem.
Best Practice: Refrain from Posting on Social Media While Your Claim and/or Lawsuit Are Pending
The best practice is for you not to post on social media while your injury claim and/or lawsuit are pending. Typically, a personal injury claim can take at least twelve to eighteen months after the subject accident or incident to be resolved. A typical lawsuit usually takes at least two more years after that to reach resolution.
You may be unwilling to refrain from posting about yourself for that length of time. If so, here are some other precautions you should take to lessen the risk of damaging your case.
Set Your Social Media Accounts to The Highest Privacy Settings Possible, and Allow Only Your Friends to Access Your Data
Although many Florida courts have ruled that setting a social media account to “private” does not legally bar access to your opponent in a personal injury lawsuit, you should still set your accounts to the highest possible privacy settings, and allow ONLY your friends to access your data. Why?
Claim Stage
Setting your social media accounts to private will prevent the insurance adjuster– during the claim stage– from peering into your personal life, and scrutinizing every post, in detail, without your knowledge. The adjuster will be unable to access your private posts, because he/she has no access to them.
Most cases settle without ever filing a lawsuit. If your case settles in the claim stage, then that means your case will be resolved without the insurance adjuster ever seeing your private social media content. That is true by virtue of the fact that you set your account on “private.”
So, set all your accounts to the highest “privacy” setting, as soon as you make a claim with the insurance company, if not before. If you don’t, it will be open season on all your social media information.
Lawsuit Stage
As discussed, the lawsuit stage gives the insurance company lawyer tools to force you and others to produce relevant social media content about you. If you fail to set your social accounts to the maximum privacy setting, then the insurance company lawyer will argue to the judge that you have zero expectation of privacy. The judge will likely agree, and, consequently, permit the insurance company lawyer very broad access to information posted about you. For that reason, you should have all your social media accounts on the highest privacy setting. Doing so may give you a fighting chance to win on this issue, or at least limit the scope of the social media information the judge orders you to produce.
What About Your Friends’ and Family’s Social Media Accounts?
Even if your social media accounts are set on “private,” your friends’ and/or your family’s accounts may not be. Every social media platform is different, but at least some will make your comments on your friend’s and family’s posts public.
Furthermore, many of us “friend” or “follow” people we do not know well. Bear in mind that these people have full access to your private profile, and can freely share it with others. In one case, a social media friend was in contact with the insurance company lawyer. The friend shared private posts with the lawyer that were later used as evidence against the injured person at trial. Needless to say, the result was devastating to the injured person.
Ask your family and friends to avoid posting photos of you, and to avoid mentioning your injury lawsuit, or how you are doing, on their social media sites while your claim or lawsuit are pending. Taking this action may save you a devastating result in your personal injury case.
What is the Bottom Line?
Your credibility is usually the most important part of your case. Insurance adjusters and insurance company lawyers will do anything to make you look dishonest and/ or make you look like an exaggerator. They will take information you post to social media out of context, in order to support their claims that you were either not injured in the accident, or your injuries are not as severe as you claim.
The best way to overcome this is not to post anything personal about yourself until your case is fully resolved. If you absolutely must use social media, limit your use to liking other people’s posts, or sharing articles or other material having nothing to do with you. If you feel that you have to post, then you had better think long and hard before doing so.
Before posting, look at everything with a critical eye. Make sure you consider the potential consequences the post will have on your personal injury claim or case. After you type something, read it over and over to make sure it does not make you look dishonest or less injured than you claim.
View the pictures and video you are about to post in a similar manner. If you did not know you, and saw that picture or that video, what would you think of you and your situation?
Put yourself in the shoes of a potential juror that does not know you. If the information could be presented to a juror out of context to harm your case, do not post it. Make sure you have the maximum privacy settings on all the social media platforms you use.
Further, ask your family and friends to avoid posting photos of you, and to avoid mentioning your injury lawsuit, or how you are doing, on their social media sites while your claim or lawsuit are pending.
Finally, look yourself up online. It will give you a good idea what is out there on you.
Call Palm Beach County Injury/Accident Attorney, Andrea McMillan
If you have been injured in an accident or incident, and are pursuing an injury claim or lawsuit, it is essential to contact a qualified West Palm Beach personal injury attorney. Call the West Palm Beach injury/accident lawyer, Andrea McMillan, with the Law Offices of Andrea McMillan. She will help build, file, and present your case.
Andrea McMillan will also provide expert guidance at every stage of your case. This guidance is crucial in helping you gain an understanding of the things you should avoid to make your case as simple and as successful as possible. That includes making helping you make sure to avoid social media pitfalls during your case.
Do not let a mistake compromise your ability to recover the compensation you deserve. Call Andrea McMillan today at (561) 612-5700. She will give you the guidance and counsel you need, and will fight for the compensation you deserve.