Social Media Increasingly Used as Evidence in Personal Injury Trials
If you regularly post pictures, articles or updates on Facebook, Twitter, Instagram or other social media sites, you may want to give serious consideration to the potential consequences if you have recently suffered a personal injury because of someone else’s negligence. Though it’s typically associated with criminal trials, the maxim that “anything you say (and do) can be used against you in a court of law” may prove true, as studies show that more and more attorneys, particularly defense lawyers, are using social media posts as evidence in personal injury cases.
Here’s how it works. In the civil justice system, we have what is known as “open discovery.” This means that both sides are entitled to access to all relevant evidence before a trial starts, so that there will be no surprises at trial. The surprise evidence is a great dramatic gimmick for a television show, but it’s not the way things actually work.
Most states have pretty liberal discovery rules, allowing parties to gather a lot of information that may or may not be admissible at trial, based on its relevance to the matter in dispute. So if you have filed a personal injury lawsuit, and you claim that your injury prevents you from working or engaging in certain activities, a judge may consider it relevant if defense attorneys are able to locate social media pictures showing you doing things you claim that your injury won’t allow you to do.
But wait, you say. I have set up my Facebook account with certain levels of privacy. I don’t make it available to the world as a whole. Don’t I have a right to privacy that prevents a defense attorney from obtaining access to my Facebook account?
The answer to that question is less than clear at present. Some jurisdictions, such as New York, look at a social media post as they would a diary. If there is relevant information in the post, it’s likely that opposing counsel will have the right to review posts and seek to admit evidence from your social medial account. Typically, though, your social media activity won’t be an open book. The judge will most likely review all proposed evidentiary submissions privately and make rulings regarding which are appropriate for a jury to see.
Of course, it’s easy in today’s world to appear on someone else’s social media page, often without even knowing it. Because the software exists to tag you without your knowledge, the best advice is to follow doctor’s orders. Don’t do anything that your physician would consider inappropriate based on your medical condition.
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