The explosion in Social Media platforms (Facebook, Twitter, Pinterest, etc.) has created problems for a wrongful death lawyer representing clients who have been injured due to the negligence and carelessness of others.
In years past, insurance companies would often hire private investigators to follow injured plaintiffs and take movies of them engaged in physically demanding tasks in order to disprove that the person was not seriously injured. These videos would then be shown to the jury during trial and sometimes prevented an injured person from obtaining a just monetary verdict. The problem with these videos is that they were a brief snapshot in time, and often showed the plaintiff engaged in an activity that he had not performed for some time and which afterward resulted in many days in bed recuperating from one day of “overdoing it.”
In today’s world, insurance companies and defense attorneys often avoid the expense of hiring a private investigator and instead subpoena records from Social Media accounts.
A June 8, 2017 article posted in Forbes magazine online detailed the unfortunate experience of injured persons who torpedoed their case by the Social Media post they made.
Consider a case of a woman who sustained a serious back injury in a car crash and, after spending over a month bed-ridden, her husband takes her on a trip to Florida to enjoy fresh air and sunshine. Her husband takes a photo of her on the beach in Miami in a swimsuit, with a drink in her hand and smile on her face. She then posts the photo to Facebook. Of course, the photo will not show the chronic pain she is enduring, or the fact that she did not even feel strong enough to go into the water to enjoy a good swim. In other words, a totally honest photo could create a false impression in the minds of a jury viewing that photo.
For the above reasons, people involved in personal injury lawsuits should stay away from Social Media as much as possible until their case is concluded. Moreover, attempting to delete their Facebook account might further damage their case if the defense attorney at trial argues that the injured party engaged in the unlawful spoliation of evidence. Spoliation of evidence is a legal term for the intentional or reckless destruction of evidence. Courts have the ability to punish the destruction of evidence in several ways. For example, the judge might instruct the jury that the jurors are to infer that the destroyed evidence would have been evidence damaging to the plaintiff’s case. In extreme cases, the trial judge may simply order the dismissal of the plaintiff’s case, resulting in the recovery of no monetary damages.