Ok so you’ve been injured due to no fault of your own. You hire a lawyer and you begin the process of a personal injury case. This is a traumatic experience. What do we all do when we go through a traumatic experience? We post about it on Facebook, or Instagram, or MySpace (showing my age here). You know, so our friends can share in our misery. Ok maybe that’s not why, but we post about it nonetheless. People like to post just about everything they do. As is it turns out, this is a very, very bad idea when you have a case pending. In fact, almost any social media posts while going through an injury case are a bad idea, whether or not you are posting about the accident. In this article, I will briefly explain why social media is not your friend, and I will provide a clear example where Facebook significantly lowered my client’s recovery.
A personal injury case is a story. Like any story that you tell, there is a beginning, middle, and an end. There is a narrative that has to flow and make sense. The insurance company will hire a lawyer whose job is to poke holes in your story, and try to show that your narrative does not “flow.” Our job, as your lawyers, is to convince either the insurance company or the jury of our “version” of what has transpired, and maximize your recovery. Let’s start with the example of “Ms. W.” Before I begin, please know that not only does Ms. W know I am writing this, but she wanted me to use her story as a cautionary tale. Ms. W, at the time of her accident, was a beautiful 21 year-old young woman who was rear-ended at a stoplight. The damages to Ms. W’s car were extensive and the pictures from the accident scene painted a very nasty picture of what must have been an extremely traumatic experience. From the accident scene, Ms. W. was transported to the hospital, via ambulance, where she was diagnosed with a low back injury. After follow-up treatment with a local doctor and a lumbar MRI was performed, it was determined that Ms. W. had suffered two herniated discs in her lumbar spine as a result of the accident. Ms. W. told me about her struggles with low back pain that affected almost every aspect of her daily routine. According to my client, she was still able to work and do the things she needed to do throughout the day, but she was forced to do so with severe pain. She knew that one day she would need lumbar surgery to fix the problem, but at her age she wanted to hold off as long as possible.
This is a simple story to understand. A girl gets in an accident, suffers permanent injuries, and lives in her life in pain. This is as simple story to understand. Well, it WAS a simple story until Facebook got involved. As Ms. W.’s lawyer, I strongly advised Ms. W. about the dangers of Facebook. I explained, in detail, that she ran the risk of poking holes in her own narrative, and doing the insurance company lawyer’s job for him. As you can guess by the tone of my article, she did not heed my warnings. Like any 21 year-old young woman, Ms. W. liked having fun with her friends. She liked going to the beach, drinking in bars, dancing, etc… Also, she like posting pictures of herself doing these things. When it came time for mediation, the insurance defense lawyer didn’t focus on who was at fault in the accident. That was established. This case was purely about what Ms. W. had suffered. Rather than make a long, verbose argument about Ms. W.’s injuries, the lawyer just showed a series of Facebook pictures. There was one with Ms. W. drinking on a bar. Not “in” a bar, mind you. No, she was actually ON THE BAR with a beer in her hand and a big smile on her face. Then there was the bikini contest Ms. W. had entered in Daytona Beach. She placed third…
All of a sudden, the narrative didn’t flow. I was trying to paint a picture of a young woman who lived every day with intense pain. The photos painted a very different picture. Judging by the photographic evidence, my client looked like someone who was clearly lying about her injuries. A reasonable jury would look at those pictures and think, “huh, I wish I had a life like that! We should all be so injured…” This was no longer a sympathetic victim whose quality of life had been taken from her. The reality of the situation is that those photographs might have just been a brief moment in time, where Ms. W. forced a smile in an otherwise pain-filled day. That may have been the case, but it sure didn’t look that way from the Facebook pictures, and a picture paints a thousand words. We had to mitigate our risks and settle for less than we had planned on leaving with when we walked in to mediation that day.
Most states have specific rules regulating what an attorney can advise his or her client regarding social media. In a case in Virginia, a court fined not only a plaintiff, but her lawyer as well, for deleting Facebook pictures and deleting her Facebook account. In that case the court found that the lawyer and client were guilty of “spoliation of evidence.” Florida personal injury lawyers are strongly warned by the Florida Bar about not advising clients to delete social media accounts or pictures. If you find yourself injured in an accident and you pursue a personal injury case, there are two bits of advice that will significantly help you. First, STAY OFF OF SOCIAL MEDIA. Second, contact the lawyers at Berkowitz & Myer. We will help you navigate through the dangers of Social Media, and any other insurance company tricks to hurt your case. We are ready to help you today!