Insurance companies typically fight hard to minimize the damages paid to a personal injury victim or to avoid payment altogether. Insurers and their attorneys employ many different strategies for avoiding liability. In high-dollar personal injury, medical malpractice, and workers’ compensation cases, some even hire investigators to prove that the claimant’s injuries aren’t as serious as he or she claims.
Thanks to the Internet, those investigators now have a much easier job. As the average person shares more and more glimpses into their daily life through social media, injury victims have more opportunities than ever to make innocent mistakes that can seriously damage their claims.
The Internet is Forever
If you went to middle school or high school in the era of social media, your parents and teachers probably warned you that your social media posts and other online content might come back to haunt you one day. For the most part, they were concerned that inappropriate language or drunken party pics or scanty clothing might hurt your reputation with prospective employers or your far-in-the-future in-laws. But as social media use has exploded, so have the risks.
You may have laughed at news stories about people convicted of crimes after posing with stolen property on Facebook or bragging to Twitter followers about vandalizing the ex’s car. When an insurance company uses social media posts against a car collision victim or someone who was injured in a construction accident, it’s generally not as newsworthy. That means you’ve probably heard a lot less about how a settlement can be reduced or a case lost through a photo, video, or even short text post on your favorite social media site. But it happens—and you may be surprised by the type of pictures and posts that can hurt you.
Protecting Yourself Online after an Injury
Much of the social media evidence used against accident victims and injured workers is innocent, but those posts can create the wrong impression when taken out of context. To avoid missteps that could keep you from getting the compensation you deserve:
- Never talk about the incident or the injury on social media. This one can be tough. If you’ve been seriously injured, friends and family will likely be inquiring through Facebook and other social networks, and you’ll want to respond. You may think—like many injury victims before you—that since you’re planning to tell the truth both socially and in court, you’re not risking anything by telling your story online.
Unfortunately, even truthful casual retellings may be used against you later. Most people aren’t as careful with their language in talking to friends, and different retellings may include and omit different details or use different language to describe the same event. In the hands of a clever insurance defense lawyer, those natural minor variations can be transformed into “changing her story.”
- Avoid talking about how you feel. Your friends and family understand that your descriptions of your health, mood, mobility, and more are relative. For someone recovering from a 15-foot fall or a motorcycle accident, “I feel great today!” might mean that your pain level has dropped from its typical 8 to a 5 for a few hours, or that you had a rare four hours of uninterrupted sleep. To a jury, though, great means…great. This type of simple, subjective comment may be used to suggest that you’re exaggerating your injuries.
- Limit active photos and videos. When you’re enduring a long recovery or are limited and in pain, any social engagement or outing can feel like a victory. Of course, you’ll want to share that event with your friends and family, just as many people use social media to share achievements, special family moments, and more. But those bright moments can become weapons. Just a handful of photos or videos from barbecues, restaurants, and other social gatherings can be strung together to create the impression that you’re living a very active, unrestricted life.
For Zackery Clement, it only took one social event. More than a decade ago, Clement was injured when a refrigerator fell on him at work. After three surgeries, Clement said he was still in constant pain and attempted to extend his workers’ compensation benefits. He lost his benefits after a hearing that included the introduction of photos of the young man “partying”—social media images that revealed nothing more than Clement sitting with a friend and drinking a beer.
- Know your audience. Check your privacy settings on any social media you intend to use in the wake of a serious injury and make sure you review your connections. But remember that this is only an additional precaution. Never assume that social media content is secure, regardless of your privacy settings. And remember that some of the most damaging content seemed completely harmless to the person making the post.
Attempting to Cover Your Tracks Can Backfire
The best way to prevent social media postings being used against you in court or settlement negotiations is to be very careful from the outset. Some plaintiffs (and their attorneys) have learned the hard way that quickly deleting the evidence doesn’t work. The duty to preserve evidence generally begins as soon as a party to a lawsuit has reason to believe that evidence may be relevant to the case.
In one of the highest-profile cases involving destruction of social media evidence, Isaiah Lester saw his Virginia wrongful death award slashed after he deleted his Facebook account in an effort to conceal evidence, then denied having done so. Lester and his attorney—who had directed him to “clean up” his social media–also faced sanctions of more than $700,000. Ultimately, the Virginia Supreme Court ruled that reducing Lester’s award was in error, but it took an additional two years and an extra court proceeding. And the sanctions stood.
Courts also have some latitude in deciding how to address expiration of this type of evidence, which may include allowing the other party to introduce evidence of the destruction.
Work with an Experienced Personal Injury Attorney from the Beginning
It’s easy for an injury victim with little legal knowledge or experience to make costly mistakes. The best way to avoid those mistakes is to educate yourself as early in the process as possible. An experienced Ohio personal injury attorney like Plevin & Gallucci can explain how you can best protect your claim. Your attorney will also create a buffer between you and insurance companies, their lawyers, and others who may seek to derail your claim.
To learn how the personal injury attorneys at Plevin & Gallucci can help, contact us to schedule a free consultation.