“Anything you say can and will be used against you in a court of law.”
If you’ve watched any cop shows or movies, you’re probably familiar with those words. While Miranda rights only apply in criminal cases, those words are true even in civil cases.
What you say to the insurance adjuster, to your friends, coworkers and family members and even online on social media, can effect the outcome of your personal injury case or workers’ compensation claim. This applies to statements that seem to have little to do with your auto accident or injury.
The insurance company is looking for ways to discredit you and for reasons to deny your claim. Often, plaintiffs unwittingly give them the legal ammunition to do so with things they say off the cuff or online or without an attorney present.
Our advice is always that our clients should not talk to an insurance adjuster without an attorney present. Also, be careful about what you share online on Facebook, Twitter and Instagram and other social networks, and also with whom you share that information.
A recent ruling by the North Carolina Court of Appeals sets a relatively low bar for authenticating information posted on social media.
The case in question, State v. Ford, was a criminal case, but what it says about social media evidence could also impact civil court cases, including workers’ compensation and auto accident claims.
The case involved a pit bull that attacked and killed a man living next door to the dog and its owner. Evidence was admitted in his criminal trial of a MySpace account that contained photos of the defendant and of the dog. Also admitted at trial were posts about the aggressive nature of the dog.
The defendant, who was the owner of the dog, was convicted, but appealed arguing the state had failed to prove he actually posted the photos and captions himself. His attorneys argued that the court should have provided additional evidence, such as the IP address where the photos and captions were posted. But the appeals court ruled the evidence presented was sufficient.
If you read the case, there was substantial other evidence conclusively linking the dog to the owner and the mauling, and the social media accounts were only one part of the prosecution’s case. But the gist of the ruling about social media is clear: The burden to authenticate social media is really low and can be based on purely circumstantial evidence.
So, anything posted on your account could be used against you.
We always warn our clients to be careful about postings on social media, and this ruling brings it home that a social media account can be incredibly harmful to your case.
In legal proceedings, information is power. If you start essentially giving that away by over sharing or publishing too many details of your life on social media, you are giving away the power you have in the case, to some degree.
Some things you should keep in mind if you have an ongoing workers’ comp or personal injury case:
- When you talk to other people about your injury, they can be called to testify. Hearsay rules do not apply to statements made by plaintiffs in civil cases.
- The only person who cannot be called to testify is your spouse. Coworkers, friends, neighbors, the guy at the convenience store and anyone else you talk to can be called to testify.
- Quite often, coworkers are called to testify in workers’ compensation cases, and they will be asked not only about the accident but also about things you said the accident and your injury.
The Social Media Trap
Now let’s talk specifically about social media.
We live in a world where we’re constantly connected, and lots of people share many details of their lives on social media.
If you’re injured at work or in an accident that is someone else’s fault, you don’t have to unplug from social media. But you do need to be aware of how your posts, tweets and Instagram snapshots might be used in court against you. Even the hashtags you use or the places you check in via apps like Foursquare might come into play in your case.
I’ve seen it happen with my own clients.
One client, who had an injury claim, went out to a bar with friends one night and posted about it on social media. The other side tried to use that status as evidence that his injury wasn’t as serious as he claimed and didn’t affect his daily quality of life. The rationale was that if he could enjoy a night out with friends, then he must not really be hurt.
All because of a Facebook status.
We recommend that our clients use the highest privacy setting available on social media so the things you post are only viewable by close friends and family members. Even so, you need to remember that there’s no real privacy online.
It’s very likely the insurance company and their attorneys will see what you have posted, whether they find it on their own, someone shares it with them or we’re required by the court to provide it to them.
While we don’t expect you to stop using social media, be wise about it. If you have posted something you think could be misinterpreted or used against you in your case, let us know so we can make a plan for how to deal with it.
Don’t delete those posts. Even if they disappear from your Facebook wall or your Twitter feed, they haven’t really been erased. Plus, the N.C. Bar Association has issued some specific rules about deleting social media posts. Hitting delete may cause even more problems.
The lesson here is be careful what you say – and in many cases, it may be best not to say anything at all. The more information you put out in the world, the more likely it’s going to be used against you. #truth