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Social Media Posts Used in Personal Injury Trials

A smiley-face emoticon. A picture of you grinning with grandma. A sizable friend list.

These are all common and seemingly innocuous elements we might find everyday on anyone's social media account. However, as the Hartford personal injury lawyers at The Law Offices of Mark E. Salomone & Morelli know, social media is increasingly being tapped as a resource for defendants in injury lawsuits. A plaintiff's photos and posts and random observations are now commonly being parsed in a public courtroom.

Your privacy settings won't save you either.  That's because courts have held that no matter how tightly you keep your information on lock, whatever you post is still being made "public" and is therefore subject to scrutiny.

It's not uncommon for people to try to remain upbeat and positive, even when everything seems to be falling apart. It's seen as a form of character strength. But it can be extremely damaging to your personal injury trial, when you are trying to claim damages for pain and suffering and emotional anguish, when you've got dozens of posts ending in smiley faces. It suggests you might be exaggerating the extent of your injuries. Or for those who have an extensive "friend" list on Facebook, yet claim an accident has left them extremely isolated and mentally distraught, the court may interpret that too is inaccurate.

Of course, we know that people put their best faces forward on social media. That happy face emoticon doesn't mean you aren't enduring serious pain and suffering. But it does undercut your claim. That's why our experienced injury lawyers recommend talking with your attorney - laying out the ground rules of social media use - before you post anything on these platforms.

It should go without saying, but it's also critical not to post anything about your actual case online either. Defense attorneys will pounce on this, and any opportunity to discredit your claim by pinpointing the seemingly smallest discrepancy - they will find it.

Now obviously, this would mean if a plaintiff claims he or she is no longer able to lift any heavy objects, yet is seen in posted photos helping a friend carry heavy boxes - this would be a direct contradiction. But most of the time, we're dealing with images or posts that are taken out of context, misunderstood or far more subjective.

Take, for example, the case of Romano v. Steelcase Inc., before the Supreme Court of Suffolk County in New York. She alleged she suffered serious and permanent injury when she fell off a reportedly defective chair. She sought compensation from the furniture store company for her losses.

Meanwhile, the defendant combed through plaintiff's social media accounts - and those of her daughter. They found posts with smiley faces, that defense alleged discredited her claim that she was depressed. They found pictures of a family vacation to Florida - even though plaintiff had stated in her filing that she was largely homebound. Based on this, defense requested greater access (to that information available only to "friends" and followers of her accounts. It was granted. As the judge noted, "Plaintiffs who place their physical condition in controversy may not shield from disclosure material which is necessary to the defense of the action."

In another case in 2009 in U.S. District Court in Colorado, a magistrate overseeing a personal injury case involving two repairmen injured in an electrical accident would have to grant access to defense of their private comments on Facebook, MySpace and Meetup.com because, the judge ruled, these orders were "reasonably calculated" to turn up information that could be relevant to the lawsuit.

Of course, it's not necessarily that people are outright lying about their emotional or physical state. It's that we project the positive to the public. Take, for example, a 2012 study published in the Vanderbilt Journal of Entertainment & Technology Law. Researchers concluded people regularly and selectively screen their photos and posts to make themselves seem as if they are having fun, attractive, socially desirable, smiling and group-oriented. What they also learned was that users are less likely to share things that show shame, regret, loneliness or pain. Of course, it doesn't mean those experiences don't exist. What it means is that social media is not necessarily an accurate depiction of our full emotional or physical state.

But it can be tough to convince a judge or jury of that, so the best thing to do is to put limits on what gets posted on these accounts, with the assumption that what you post will be discoverable by defense lawyers.

Contact us today for a free consultation at 1-800-WIN-WIN-1.

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If you were injured or a loved one was injured or killed in an accident in Boston, Worcester, Springfield or Holyoke, a personal injury lawyer can fight to help you obtain compensation you deserve. At the Law Offices of Mark E. Salomone, serving Massachusetts, our personal injury attorneys have an impressive record of trial verdicts and settlements.