On a recent episode of All Things Legal that had a heavy emphasis on technological issues, the team took a moment to discuss how social media has led to a sharp increase in the incidence of self-incrimination in court cases, including those having to do with personal injury law.
Self-incrimination has been a topic of discussion before on the show. Back in January, All Things Legal discussed a case where a man stopped traffic in order to propose to his girlfriend, and posted it on Instagram. That was followed up by the story of a woman who was driving drunk while streaming her actions to a live audience through Twitter’s Periscope application.
It’s become increasingly common for social media content to seriously impact personal injury and worker’s comp cases.
While such extreme cases of self-incrimination with technology are unusual, it has become a serious problem for those who are involved in personal injury cases, or who have previously received a judgment or settlement for a case, or who are on disability.
Back in 2014, 106 New Yorkers were indicted by the NYC district attorney’s office for disability fraud amounting to more than $400 million. One of the largest sources of data revealing the fraud was Facebook. Evidence included Facebook photos of one man riding a personal watercraft, another holding a swordfish he caught while ocean fishing, and another still riding a motorcycle.
Your Facebook and Instagram photos are not private, and they can be used against you.
When it comes to legal cases, social media profiles and the photos and videos uploaded to them are not private. In the New York disability fraud case, a Manhattan court ordered Facebook to turn over the user information of those being investigated by the state.
While this was an extreme case, hundreds or even thousands of personal injury cases are compromised by data mined from social media accounts. Every post and picture and video is helpfully time-stamped with the exact moment that you uploaded the media from your phone to social media site’s servers. These accounts are essentially a gold mine for defense lawyers.
Craig aptly summarized the issue that often arises: “When you are on Facebook, let’s say you’ve got a family law issue, or let’s say you’ve got a personal injury case, or a worker’s compensation case. You’ve got to be really careful about what you put on Facebook. Defense attorneys say Facebook is the gift that keeps on giving for them, because people say, ‘You know, my life is miserable. I can’t work, I’m unable to garden,’ and then they’ve got a picture of them hanging out at the pool in Vegas. Maybe there’s a good explanation for that. You had to travel because, ‘My great aunt died and I was by the pool and I had to take some Vicodin because I was in so much pain.’ But the impression that is left is that your life is awesome… and the defense will use that against you.”
Social media sabotage isn’t just an issue in cases of fraud.
You may be telling the truth in court, but your Facebook account can unintentionally undermine your argument. Ed Schade turned to human nature to explain why people so often unintentionally sabotage their court cases: “People have their real lives, and then they have their Facebook personas. We all see it. We have people, friends, you know, you might look and say, ‘Oh my god, everything’s going great.’ And you go, ‘Behind the curtain, it’s completely different.’
“So… you know, if you’ve got a personal injury case, don’t sit there and run a marathon and put it on Facebook. You don’t have a personal injury if you’re actually out there running a marathon.”
What’s the solution? According to Craig: “You just have to be authentic and honest! That’s it! Period, end of story. If you are authentic and honest about all you do in life, really, but in the confines of a personal injury case where there’s proof issues… just be honest and organic, because you’ll get much better care.”
Craig’s point is that fictionalizing your life on Facebook or Instagram, making it something it’s not, can lead to the perception that you aren’t being honest when you say that your quality of life has been seriously impacted by your injury. You may be in serious pain every day, or to engage in many of the pastimes that you used to love, or even be able to work, but when you have a Facebook account that only shows a string of happy moments of you next to a pool or at a park or watching a baseball game, it can give the impression that you are much better off than you really are.
This doesn’t mean that you shouldn’t enjoy your life. But when you are engaged in a court case that rests upon showing how your life has been negatively impacted by an injury, you have to very carefully consider the life that your social media accounts portray.
If you are starting a personal injury case, then you need to turn your social media accounts off, or change how you use them.
The safest choice is probably the simplest: shut down your social media accounts while you’re involved in a court case. If you insist upon continuing to use them, then at least be careful to accurately depict your life. While court cases ostensibly only revolve around hard facts, the truth is that feelings and impressions matter. When you go to post something on Facebook, take a moment and think, “What would the judge or the defense attorney think if they saw this?”