Social Media and Your Lawsuit

Attorney Michael Pomerantz introduces the topic of social media and its potential impact on your civil lawsuit. His best advice: Shut down your social media accounts once you have a case and be honest with your attorney regarding anything online that may damage your credibility. (This is our first article addressing the topic of social media’s impact on lawsuits – keep your eyes open for more on the issue soon!)

If you or a loved one is the victim of a catastrophic injury that was someone else’s fault, the law may provide a remedy that allows you to seek just compensation.  The larger the claim, the more vigorously the insurance company will defend, and, in many cases, that means initiating a smear campaign against the victim and family.  The popularity of Facebook, Instagram, and other forms of social media provides the insurance companies with a treasure trove of data to use against you in your case.  Clients should adopt the attitude that anything they say, and anything they have ever said, will be used against them.  While the law may exclude some of the evidence mined from your various social media streams, this is still a developing area.  The safe rule is, once you have a case, shut down all the social media.  In a big case, the defendants will try to use it against you every time.

But what about statements you have already made on social media?  Do not attempt to remove any posts you made before the incident giving rise to your claim, especially if it is a significant claim.  So many cases turn on credibility, and juries favor plaintiffs they believe are truthful.  Tweets, Facebook status, and other social media posts may be deleted by the user, but such deletions are no guarantee that the posts are erased from the computer servers maintained by Facebook, Twitter, Instagram and others.

Consider the following example:  A client has a minor conviction for drug possession and then, years later, is involved in a catastrophic highway crash with a tractor-trailer.  This crash renders the client, now in his late 30s, unable to work for the rest of his life.  The client is aware that his social media streams contain recent tongue-in-cheek drug references that he is worried may lead others to believe he still uses drugs.  He tells the attorney about the conviction, but mentions nothing about the social media posts, thinking that, since the statements were made in jest, there is no harm in just deleting them from his timeline.  Because of the severity of the client’s injuries, the trucking company mounts a successful campaign to access the client’s timeline and discovers not only the drug references, but, more importantly, the attempt to delete the posts.  The prior drug conviction is likely not admissible, but the social media posts and the attempted cover up are admissible because they create an issue of credibility.  Usually, clients who lack credibility are not successful in their lawsuits.

The best action to take with regard to prior posts that may be damaging or embarrassing is to tell the attorney about them.  Clients who try to deceive their attorneys invite disaster.  It is always easier for an attorney to manage bad facts that he or she knows in advance, rather than to deal with a surprise learned for the first time during cross-examination of the plaintiff in front of a jury.  By that time, the damage is done.

Social media is a developing issue in the legal field.  Much of the case law is still being established and, therefore, we often find ourselves in unchartered territory.  The best way to approach your case is to be honest and transparent with your attorney about your social media presence from the beginning.

There are many situations in which social media may play a role in a lawsuit. This is a developing topic, so we plan to keep you up to date regarding the issue- check back for more!