Why did my Lawyer tell me to stop posting on social media?
It is very common for our office to tell clients to stop posting on social media after a car accident or other personal injury incidents. Invariably, our clients wrinkle up their noses, and want to know why they are getting such an odd piece of advice. After all, what you post on Facebook and Twitter has nothing to do with your car accident. Right?
The truth is, like almost every other answer that a lawyer gives: it depends. As we've said time and time again, anything you say can and will be used against you. This includes the things that you post and write!
While most personal injury cases will settle, we prepare every case that comes into our office for litigation. This is the Blaszkow Legal Method that allows us to aggressively pursue our clients' rights to compensation. We do this on a strategic basis, that way the insurance companies know that we are ready, willing, and able to fight, each time and every time. However, that being said, we have to consider what the other side is going to be able to get if we do go into litigation.
Lawsuits that are filed in the Virginia and Maryland Circuit Courts (1), or the DC Superior Court, are subject to a process known as discovery. Discovery is the part of a lawsuit where each side gets to investigate the claims that are being made, as well as the defenses that are being asserted. Discovery often includes written questions called interrogatories, and requests for production of documents. Often times, one of these requests from the defense is for a full and complete copy of any and all social media postings made by the plaintiff.
Why does that matter?
Imagine, if you will, that a client has been involved in a serious car accident, and then was prescribed about 6 months of physical therapy. The client is invariably having pain as they walk that long road to recovery. However, after a couple of weeks, the client is invited to his sister's wedding. He decides to take his prescribed pain medications, and attend the wedding! During the wedding reception, the wacky and almost-unavoidable Chicken Dance is done. Someone takes a picture, he finds it hilarious, and he posts it on his Facebook. Now why is that a problem?
Simply put, the insurance companies' defense lawyers are going to utilize that picture to suggest that because you are able to get up and dance you were not actually as badly hurt as you claim. They are going to suggest that sure the accident happened, and maybe they are even at fault! But because of this dance, all of the treatment after this is unrelated and simply the plaintiff trying to exaggerate his pain and suffering!
Of course, his attorney will object to that, and say that he simply grit his teeth and pushed through the pain, and that picture is not an accurate representation of the whole of his actual condition. That is the argument that we will make. But simply because this picture exists, the insurance company is going to try to paint him badly before the jury, and the judge.
This is a nightmare scenario of course, and not all defense lawyers are going to find this material, or use it like that. But it can happen. In fact, it has happened. There are many stories circulating about clever defense lawyers who have competent investigators, and have used online information to significant reduce plaintiffs' cases. Thirty years ago, some defense lawyers would hire private investigators to follow people and snap pictures with long, telephoto lenses. Nowadays, they don't have to, because most people are posting their own pictures for the world to see.
What if I put my account on private or friends-only?
People always have the option to make their social media accounts private, but this provides only a false sense of security. A subpoena can pierce this, because the content does indeed exist. Also, whether it is public or private, you still have to answer the questions in the interrogatories and requests for production.
It is the best option, from a legal standpoint, to stop making posts after you have been involved in a personal injury incident, if you wish to assert and pursue a claim.
Aren't social media posts inadmissible?
No, they are indeed admissible. This is a fallacy that is circulating around the internet, and it is simply not true. There are certainly circumstances where attorneys, like us, will make objections and try to exclude things from coming into evidence, but there is no blanket rule that social media is inadmissible in all courts of law. This is true in all three jurisdictions that we practice in: Virginia and Maryland and DC.
Social media is extremely prevalent, and we know that. But in order to make sure that you are not in any way negatively impacting your car accident case, listen to your attorney's advice. After the accident, and while you are in treatment, refrain from posting online anything that could be misconstrued and misused. If you're in doubt, don't post it. If you aren't sure, don't post it. You can't go wrong with not posting something! This will save you - and your attorney! - some headache later on.
If you have been involved in a car or truck accident anywhere in Virginia, Maryland or the District of Columbia, call Blaszkow Legal, PLLC for a free consultation: 703-879-5910
(1) - Discovery is also available in the Maryland District Courts, but on a very limited basis. See: https://alexandriainjuryattorney.com/blog/anatomy-of-a-case-maryland-district-court-part-1/