A while ago I wrote in our newsletter about medical records, and how in every injury case I can recall there’s been some damaging error in my own client’s records that I’ve had to explain away or refute with contrary evidence. Asking to see your chart and correcting errors on the spot can help minimize those problems, but ultimately that evidence is under the healthcare provider’s control, and it’s near impossible to eliminate those errors completely.
Social media mistakes, on the other hand, are completely avoidable. If you are a plaintiff, you need to be careful with these sites to avoid shooting yourself in the foot.
The fundamental problem with social media, especially for plaintiffs, is that we all want to look our best out in public. When you go on Facebook, or LinkedIn, or Twitter, or Instagram, or any of the other social media outlets, how many of your connections use the platform to complain about their lives? Probably few or none. Most people use social media to paint their lives as rosier, happier, and more successful than they really are – at the very least, they put their best selves forward and accentuate the positive. Parties, sports, recreation, and social engagements are recorded as we want to remember them, and as we want other people to think of them. Any rosy shading aside, social media posts simply aren’t effective records of pain or limitation, because that’s not what they’re for.
While that can make social media a positive, and even uplifting, experience for its users, it can also be a trap for a plaintiff. In litigation it’s just like you hear on the police dramas: “Anything you say [on Facebook] can and will be used against you in a court of law.”
As a plaintiff in an injury case, if you post a selfie on Instagram of yourself and your friends all dressed up and ready to go out dancing, or on Facebook of you on a hunting trip, beaming with pride after bagging the first deer of your life, or you reassure your Twitter followers that you’re “totally fine” after your scary car accident, you can be sure those pictures and posts will be thrown back in your face when your case goes to trial.
You may have a dozen witnesses to testify that you sat by the wall all night while everybody else danced, or that your friends had to haul that deer out of the woods for you because you could barely walk, or that your reassuring tweet simply meant you weren’t dead, and that your injuries were real and serious – all of that may be true, and all may be supported by evidence, but the posts will still create doubt in jurors’ minds and hurt your case.
Remember also that once you post something you can cause even more damage by taking it down. Deleting social media activity can be considered destroying evidence, and can invite the jury to presume that you are hiding something that would’ve hurt your case.
So, if you’re a plaintiff or may become one, be thoughtful when you post. Understand that a defense attorney is going to look at everything you put on the internet and try to use every word and picture to convince a jury that your injuries are less severe than they really are.