How Social Media Can Be Used Against You In Court
If it can be used against you, it will be. Over a decade after social media transformed private into public, we still have a lot to learn about what we choose to post online. Just like your problematic Tweet from college can be used against you in the workplace, a seemingly benign Instagram post can be used against you in an injury claim.
Anyone who has watched even a couple seconds of Law & Order will know the phrase, “You have the right to remain silent. Anything you say can and will be used against you.” While that usually applies to criminal cases, the same principle applies to civil cases, too: if they have evidence to use against you, they will use it. The right to remain silent applies to social media as well: you have the right not to post anything and everything from your life.
What Are the Risks of Posting to Social Media During a Lawsuit?
The risks your socials can pose to your claim or case extend only as far as what you’re willing to share. As a society, we’ve kinda been duped into believing that social media was a kind of diary or scrapbook our family and friends can view and participate in. The reality is that social media is every bit the dumpster fire the site formerly known as Twitter casually pointed out on the regular. People start fights, post nonsense about their boring lives, and stoke insurrections and coups worldwide. It’s not exactly a healthy environment.
If your personal injury attorney had their way, you wouldn’t post at all. But since that’s unrealistic in today’s society, here’s what you put at risk when you post while making an injury claim:
Evidence Contradiction and Inconsistent Statements
You say you’re injured, but your posts show you out dancing with your friends. Lawyers and insurance companies will often hire investigators to specifically comb through your social media looking for posts that they can use to downplay how serious your injury is. So if you’ve claimed that you cannot dance or that your injury keeps you from working, but your Instagram shows you cutting a rug, it’s going to hurt your case. In other words, you’ve been busted. Claim denied. Next!
Nothing about social media is authentic, despite what LinkedIn marketers tell you. Your minor lay up in the hospital for “sympathy likes” can be an example of how you can’t be trusted to accurately disclose your injuries. If you post your injuries online, the defense could argue that you’re doing it all for attention. After all, if you didn’t want other people seeing it, why did you post it? If they can paint you as a liar or exaggerator, they can claim you’re lying about other facts and testimony, too.
Your Posts are Misconstrued
Even if you are 100% honest, trustworthy, and visibly injured, insurance companies and their lawyers will do anything short of hiring a goon to attack you and prove that you are somehow lying or exaggerating your injuries. It’s the unfortunate reality of their business. They don’t make a profit when they pay out a claim. It’s in their best interest to prove your claim to be false or exaggerated.
Be prepared to have an explanation for any of your posts. When your online content is twisted against you, be ready to provide the necessary context to nip the attack in the bud. And don’t forget, a private profile may be a speed bump in an insurance fraud investigation, but subpoenas exist to allow them access to your “private” profile. Many investigators can even get access to “private” profiles through questionable but potentially legal means without having to wait for a court order.
What Can You Do?
There are a few things you can do in order to mitigate the potential battle over your socials. These aren’t just practices you can do to protect yourself, they’re healthy habits worth using in your day-to-day posting.
This should be a broader rule, but it’s critical that you post far more selectively than you normally would. If you’re in the middle of a battle with your insurance company, ask yourself, “Would an insurance company lawyer take this way out of context?” If the answer is, yes (and it is) then don’t post it.
Believe it or not, you don’t have to post it. Whatever it is. People don’t really care as much as all of those likes suggest. Humans used to get along just fine not sharing their poorly plated breakfast or their hot take on the latest influencer nontroversy. Try putting the phone down. Or, at the very least, be very selective about what you choose to share on social media. Not just for your case, but for the good of mankind.
Curate Your Existing Content
Take a look at what you already have on your socials. Anything that is in your past can be used against you no matter how good you are currently. Just ask the former editor of Teen Vogue. Even if it’s ten years old and from the mind of a stupid young person, it can come back to bite you. It’s just how it is.
Consult Your Lawyer
When in doubt, ask your personal injury attorney. They have the knowledge to more accurately guide you in how to use your social media going forward in your case. They can also help you purge problems, and use what is there to your advantage.
It can be a tricky situation, but it’s not impossible to manage. You think people like Beyonce survive and thrive in the digital age by accident? No, she’s selective as hell in what she posts online because if it can be used against you, it will be.
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