I remember one of my first depositions back in 2004 when I was a new lawyer. I was deposing an individual who was bringing claims against his employer. Despite his attorney’s claims, his emails painted quite a different story. And in one of those emails I found a reference to an early social media site that isn’t in existence anymore. I spent a few hours going down the rabbit hole of his posts and pictures, and found a treasure trove of information that completely undermined his claims. I will never forget the look on the individual’s face when I mentioned this site. He knew what was coming. His lawyer on the other hand, who was a few decades older than me, had no idea where I was heading. I have no doubt that after that day, his lawyer began inquiring about his clients’ social media accounts.
That was more than 17 years ago, and investigating a prospective witness’ online profiles and social media accounts is more important now than ever. Most people interact with one more social media sites throughout the day. Some people are prolific posters rarely keeping a thought or experience to themselves. Others rarely post anything. Either way, I always advise clients – whether they are in criminal defense, personal injury, or business litigation cases, to be very mindful of their social media presence. Ideally, any social media profiles are taken down, or at a minimum, set to private. And even if set to private, I tell clients not to post anything they don’t want opposing counsel asking them about.
I have used social media posts to cross-examine witnesses in everything from domestic disputes, to car accidents, to sexual assault cases. No matter how well a lawyer prepares a client for a deposition or court testimony, online activities can destroy a witness’ credibility and claims. I have seen social medial posts completely change the outcome of a case. In a recent sexual assault case that I defended, the defendant claimed that their interaction was entirely consensual. However, after the encounter, when the defendant indicated he did not want to be in a relationship, the alleged victim reported that their initial sexual encounter was nonconsensual. Her old social media posts which we immediately preserved told a very different story. Taking selfies in his bed, minutes after she claims she was raped, and posting them to her profile with references to a satisfying sexual experience. Tagging him in posts that were flirty and sexually suggestive after their encounter. Even though she deleted the posts as soon as she made the claim, we had already secured the evidence and the damage to her credibility was done.
Social media is just as important in personal injury cases, where insurance companies are known to stalk the claimant’s online social media profiles for evidence that the claimants are not truly suffering from the injuries and damages they have claimed. When you consider that most people turn to social media to post pictures or memorialize important, happy, or celebratory events, this is a dangerous phenomenon. Many claimants who are suffering with significant injuries that have destroyed their quality of life and ability to support their family, are still able to stand and smile for a 5 second family photo at a graduation or wedding ceremony. Which the insurance company will often shamelessly use to argue that their period of disability was over.
In accident cases I find that my clients who were avid athletes or gym rats often suffer tremendously when they can no longer exercise. Their mental health often suffers in tandem with their physical injuries. When those individuals are finally well enough to make it back inside of a gym, even if they can’t accomplish a fraction of what they used to do because of their injuries, many are excited to post on social media. Many gyms are happy to have their devoted Clients back and will give shout outs and tag them in posts. The comments and well wishes are intended to provide motivation and encouragement to the injured client that they are back on the long and difficult road to recovery and regaining their strength.
Unfortunately, the insurance companies rarely see it this way, believing that if an injured client was back at the gym, they were “back to normal.” In reality, many of these Clients are simply trying to return to some semblance of normalcy after their insured’s negligence caused unspeakable damage to their physical and mental health. By this logic, a confirmed couch potato who happily stayed home and made no effort to expedite their recovery would be deserving of a larger settlement than the athlete who was pushing himself to return to his former condition. Where it seems unlikely insurance companies will ever stop penalizing claimants who take control over their own physical and mental health, let’s make it easier on everyone and stay off of social media if you are involved in any claim or litigation.