Social Media and Your Personal Injury Lawsuit: How Facebook, Twitter and My Space Can Affect Your Lawsuit

There's an old wartime line that "loose lips sinks ships." One could apply that line to personal injury lawsuits: clients who talk too much can undo a lawsuit. In today's world, postings on Facebook, Twitter, My Space and other social media can also undermine a lawsuit. A New York State Supreme Court held that a woman had to open her private Facebook and MySpace accounts to the defense in their effort to challenge her injury claims. This ruling heightens the need for clients to be very careful in what they say and post about their private lives.

Clients Need to Mind Their Own Business

I have long advised my clients not to discuss their cases with others. You never know what you might say, who might be listening and how an innocent comment might come back to hurt you. A seemingly innocent conversation with a co-worker can come back to haunt when that co-worker takes the stand against you. Defense investigators will follow clients to take photographs and often hide their identity to extract incriminating information from a client.

You say a client should have nothing to hide, but an investigator can take an innocent comment and turn it against a client in a court of law. For example, attending a family party can be portrayed as a person out on the town.

Assume Anything You Post Online Can Become Public

In recent years, I have cautioned my clients about their use of Facebook, Twitter, My Space and other social media. I recommend that clients refrain from using social media during the pendency of a lawsuit.  An innocent posting, an old family photo posted on line can wind up as evidence presented by the defense in a court case. Last week, New York State Supreme Court Judge Jeffrey Spinner ruled that a woman suing over injuries suffered when her chair collapsed at work had to open her Facebook and My Space accounts to the defense. The judge wrote:

To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information . . . risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.

In the case before Judge Spinner, a woman hurt her back and neck when a chair collapsed under her. She is suing for medical damages and the diminishment in her "enjoyment of life." She posted comments and photographs from her travels to family events in other state. The defense wanted access to her accounts because they will use her own words, the words of friends and family and family photos to refute her claims. According to the woman's attorney, she never claimed that she could not travel, but the defense will use every scrap of evidence of pleasure to challenge her claim.

I do not know if the woman will appeal the judge's order. I expect other judges will follow Judge Spinner's lead unless the ruling is overturned by higher courts.

Advice to Clients

Clients need to realize that the defense will go to great lengths to defeat personal injury and medical malpractice claims. The larger the case, the more the defense will spend to defeat it. Defendants, especially corporate defendants, will spend vast sums to beat back claims by individuals. What should you do?

• Make sure you select an attorney who has the experience and ability to stand up to defendants.
• Tell the truth. When you tell the truth, you do not have to worry about challenges to your credibility.
• Do not speak or write about or otherwise discuss your case with anyone other than your attorney.
• Be aware that anything you post online can be used to undermine your case. This applies to postings on Facebook, My Space, Twitter and other social media, but also comments posted in online forums.  You should refrain from posting on any matters until your lawsuit is resolved.
• When in doubt, consult your attorney.