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How Social Media Will Ruin Your Case

Daniel Noffsinger - Monday, February 29, 2016

Social media apps or websites permit users to create and share content (words, images, or videos) with friends and family or the public at large. By total number of users, Facebook is one of the most popular of such websites. Others include Twitter, LinkedIn, Pinterest, YouTube, Foursquare, Instagram, and Reddit. These apps and websites enable their users to share personal pictures or videos, thoughts, and employment history through posts. Commonly used in the college admission process and during employment hiring decisions, social media apps or websites are also being routinely used in litigation of all kinds. Insurance companies, opposing parties, and defense attorneys turn to a social media accounts to limit, discredit, or deny all sorts of testimony or claims.

The Golden Rule

Anything you post on a social media app or website has the potential to be used as evidence against you during the pendency of your case.

Privacy Settings are Not Enough

Insurance companies and attorneys look for evidence that you are not as injured as you claim to be or that their client did not cause your current injury or that you are working, travelling, or spending more or less than you claim to be. Even if your profile is private, you may be ordered by a court to produce your social media posts and provide them to the opposing side.

Social Media and Your Family Law Case

I tell people, “cases are won and lost on Facebook,” and it is definitely true. The opposing side can find a trove of information about you that ‘can and will be used against you in a court of law.’ A few examples are:

  • Claims of an inability or diminished ability to work. This example recently occurred when the other party claimed 100% disability, proving he could not hold a job. His white- water rafting and hiking photos proved otherwise.
  • Proof of spending. The rage these days seems to be taking and posting photos of your food. If you are trying to show that you need financial assistance from the other party, posting pictures of the filet mignon you had last night is unwise.
  • Lifestyle. In a custody battle, you probably don’t want to have photos of your keg stand at the all-night party you attended last weekend. Undoubtedly, that will show up as the other side’s Exhibit A.

Social Media and Your Personal Injury Claim

If you are involved in litigation or are considering filing a personal injury claim, keep the following in mind as you manage your social media accounts:

  • Do not post details about your accident, injury or recovery, including responses to inquiries from your friends or family regarding your accident, injury, or recovery. For example, if you have a claim for back injury, do not post a picture of you roller skating at your sister’s birthday party.
  • Google yourself and address any negative information with your personal injury attorney.
  • Increase your privacy settings.
  • Limit other people’s posts regarding you. You did not post pictures from your sister’s roller skating party mentioned above on your own social media accounts, and do not permit your sister to post pictures of you roller skating at her birthday party on her social media accounts.

The best behavior is to avoid posting anything about yourself during the pendency of your personal injury case.

Do Not Purge

Do not go through your social media accounts and delete unfavorable materials. Materials deleted are still discoverable in litigation and courts may draw an adverse inference on your purging behavior in the determination of your case. You and your attorney have a duty to preserve all evidence relevant to your claim, including electronic evidence. Colorado recognizes adverse inference as a sanction for intentional destruction of evidence. The state of mind of the party that destroys the evidence is an important consideration in determining whether adverse inference is the appropriate sanction. In addition, in order to remedy the evidentiary imbalance created by the loss or destruction of the evidence, an adverse inference may be appropriate even in the absence of a showing of bad faith. Pfantz v. K-Mart Corp., 85 P.3d 564 (Colo. App. 2003).

There are attorneys in town who will require you to delete your social media accounts before they take you on as a client. Strongly reconsider signing on with an attorney who will urge or require you to violate the law in this fashion. It may give some insight as to the standard ethical practices of that attorney.

Contract a Colorado Springs Attorney

Contact us today to discuss your case. At Noffsinger Law we can help you understand your legal rights in family, criminal, or personal injury case. Click here to schedule your free initial consultation or call us at 719.368.3688.