Kevin Marshall
January 30, 2012
Personal injury lawyers and individuals pursuing lawsuits should be wary of a recent case in which a judge ordered a lawyer to call his client to a secret meeting and download her Facebook page.
The spectre of social media sites being used in litigation is growing.
“Social media is increasing as a form of communication and people tend to let their guards down in that context. They like to get their names out there, and sometimes they tell people who they barely know what’s going on in their lives without realizing the danger they are putting themselves in if in fact they are involved in litigation.”
I represent plaintiffs in personal injury cases as well, and “insurance companies put a lot of resources and time into trying to establish that what a person says in terms of their damages and the injuries they sustained in an accident are not actually in accordance with reality or perceived as such."
“Using social media is a much cheaper way for the insurance companies to achieve that rather than spending time and money on surveillance. They simply have to check Facebook and other sites, which is fairly quick and cheap, and if they have the pictures or the text to suggest there’s a disconnect between what the person said and what they are posting, then the person’s credibility is going to be negatively affected.”
People have a tendency on social networking sites “to portray a very good image of how their life is; they don’t necessarily want to portray the negative aspects of their lives such as how they were badly injured. Instead, they want to say how great things are, that they’re having fun, they’re meeting people and they’re doing exciting things. This is obviously a gold mine for insurance companies because they can use it to show that in fact they’re not as badly injured as they are … even though they may very well be.”
“It’s perception. An isolated picture without much context showing the person for example at a wedding, may well be sufficient to destroy a person’s credibility because a picture is worth a thousand words.”
Meanwhile, I take note that the second issue of the case involving the judge compelling the lawyer to produce his client to a meeting is highly unusual. “I have never heard of this before,” it could lead to a breach of the lawyer/client relationship.
“It causes some difficulty for the lawyer.”
“It will cause tension between the client and the lawyer. The client will probably blame the lawyer, even though the lawyer is not responsible. It would be difficult for the lawyer to explain to the client that he is simply complying with a judge’s order.”
“The client will understand that in his or her head, but in their gut, they’re going to be upset.”
