What effect will filing a lawsuit have on my everyday life?
Pursuing legal action can be time consuming, particularly at the beginning when you are helping your attorney understand what happened, and at the end during settlement negotiations or trial. Your lawsuit should not, however, take over your life. It is your attorney’s job to worry about all of the legal details, not yours.
But there are some important things you need to know right from the start, especially about “social media.”
In any lawsuit for injuries, there is a good chance that many aspects of your life that you consider private will become open to investigation by the defendants and their attorneys. Medical records (even records from remote illnesses and injuries), employment history, and even what you post on social media sites like Facebook, Twitter, Instagram and LinkedIn may be placed in the spotlight during the course of your lawsuit. You should keep this in mind when posting to and maintaining any social media sites, if you are pursuing a claim for personal injuries.
One way in which social media can enter into a lawsuit is if you make a claim for “emotional distress” or “loss of enjoyment of life.” Those are common aspects of any claim when someone suffers a serious injury. For example, if you contend that your injuries have prevented you from enjoying time with your family, photos of you and your family smiling at the camera on vacation might be used against you. Or if you are claiming that injuries you have suffered make it difficult to walk or exercise, a photo of you dancing at a wedding months after your accident could also be used against you. While you might think that you can explain this (“I was in a lot of pain during that wedding!”) a picture says a thousand words, and a good defense attorney will make the most of any evidence the lawyer can find that makes it seem like you’re not as hurt as you say you are. Keep in mind that insurance companies will do whatever it takes to undermine your case and pay you the least amount possible.
In McDougald v. Garber, 73 NY 2d 246, a judge defined the capacity to enjoy life as “watching one’s children grow, participating in recreational activities, and drinking in the many other pleasures that life has to offer.” There have been many cautionary tales in which social media has caused a victim to lose credibility when claiming their loss of enjoyment of life’s little pleasures.
Romano v. Steelcase is a great example of social media potentially undermining a case. Kathleen Romano brought action against Steelcase Inc., which made a chair that collapsed under Ms. Romano, causing her “serious permanent personal injuries” and “pain and progressive deterioration with consequential loss of enjoyment of life,” according to her lawsuit complaint. Steelcase Inc. subpoenaed Romano’s Facebook and Myspace pages in pre-trial discovery, contending that these sites had evidence relevant to the case. Romano refused to release this information, arguing that it was a violation of her right to privacy.
Because there were no similar cases in New York at the time, the court looked at a similar case in Canada, Leduc v. Roman. In this case, the defense was able to use the plaintiff’s private Facebook page. The Court gave this explanation:
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 about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.
The Court ordered Ms. Romano to turn over much of her social media pages, which showed her smiling outside of her home.
Clients need to be aware that how we very naturally choose to portray ourselves on social media can give a skewed image of reality in the context of a legal case. It is common for people to only post positive and happy images on their social media sites, attempting to show the world the best version of themselves. After all, nobody likes a whiner or a complainer. But those “happy” postings can take on a life of their own when you are trying to prove life-altering injury and a loss of enjoyment of life. Insurance companies and their attorneys know this, and will use social media posts against your case whenever they can. Keep this in mind when maintaining your social media presence if you are considering pursuing a personal injury claim or lawsuit. Many attorneys will advise you not to post anything at all until your case is finished.
You can read more about the use of social media in court in this Slate article: https://www.slate.com/articles/technology/users/2015/04/social_media_and_the_law_if_you_re_claiming_emotional_distress_don_t_appear.html