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Social Media: The Cloud behind the Silver Lining

Feb 21, 2019

We all use social media. We love it!  But is it safe?  For an injured plaintiff in a personal injury action, it both a blessing and a curse!

Social media, as we all know, has changed the way we communicate and interact. It has, literally changed everything, as any short ride on the TTC will demonstrate. Passengers are glued to their cellphones. They Text instead of speak. While it has undoubtedly brought many of us closer together, as with all good things, it comes with a heavy price: the ability of others to use our social media communications to their advantage and to our detriment.

This is particularly true when people sue in court to be compensated for injuries received as a result of negligence of others: car accidents, medical malpractice, sports injuries, slip and falls, and even home accidents. What you say on your social media - in an attempt to be funny, or sarcastic, or through use of exaggeration - can have consequences!  It can come back to undermine the strength of someone’s legitimate claim that they have been seriously injured in an accident.

What most people don’t know - and few of us ever think about - is that the day you sue someone in court, you’ve essentially lost all your rights to privacy!  In other words, your life becomes an open book.   Depending on the nature of the injuries you’re asserting, your entire life’s history – including your medical history, and even your psychiatric or counseling history, is accessible to the defendant you’re suing – usually represented in court by an insurance company. Will they ask for these kinds of records? Absolutely! Are they entitled to look at them?  For sure!   Will you be cross-examined on them at trial?  Yes, if your social media comments, postings, and/or photographs on Snapchat contradict what you said during your pre-trial examinations.   These postings and picture will ultimately become “Exhibit A” in front of the jury and will feature prominently in the insurance lawyer’s closing argument.

What does that mean for you as a plaintiff in a personal injury case? Quite simply, it means that you’ve got to be extremely careful about what you post online. Even the simplest of comments may be misconstrued and then used by the opposition in an attempt to undermine your credibility. Even comments as innocuous as “Boy did I have a great time last night!”, or “I don’t need a lift, I’ll get there on my own”, can be used by the defence to attempt to undermine your honest assertion that you have been significantly disabled by an accident of some kind.

The reality is that the vast majority of people who claim to have been injured in an accident, have legitimate injuries and are entitled to be compensated for them. It is also a fact, however, that the job of the defence (insurance company) is, as far as possible, to attempt to persuade a judge or jury that your disabilities are not as significant as you claim them to be, and that you are not entitled to as much compensation as you appear to be claiming in your lawsuit.

What can you do about it? Two things. First, as with many things in life, think before you post!  That should become your mantra.  Humour, sarcasm, and exaggeration are facts of life for all of us.   We use them in everyday conversation.  However, in the personal injury action context, social media postings using such common devices can, and will, come back to haunt you during the course of your case. Not only will these comments be used by the defence in an effort to minimize the magnitude of your injuries or the amount claimed for damages, they may also serve to persuade the opposing lawyer, and the insurance company, that your claims of disability are exaggerated, at best, or fabricated at worst.

Second, be sure to tell your lawyer right away if you have been posting things that might either prove embarrassing or undermine your case. To use the old adage, to be forewarned is to be forearmed. Contrary to popular belief, we as lawyers are not in the business of presenting fabricated cases. We truly believe in what we do and in the integrity and honesty of our clients and their cases. It is amazing what a good lawyer can do with the truth. So, watch your social media postings and let your lawyer know if you’ve posted something that can be misconstrued.

At the end of the day, for the vast majority of us, social media interactions have become necessary and enjoyable part of everyday life. However, in the course of a hard fought personal injury case, an ill-advised text, blog, or posting can undermine an otherwise legitimate case. This silver lining might be wrapped in a big cloud!

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Mr. Dychtenberg and his team helped me through a very difficult time following a motor vehicle accident I was in.  They were very professional yet compassionate.  I always felt that they really did care about me.  I am grateful for the compensation Mr. Dychtenberg received on my behalf because it has allowed me to continue with treatments for my injuries.  Thank you!

D.P.

Shekter Dychtenberg LLP is a boutique Bay Street litigation law firm with big firm talent. We may be smaller than some, but no firm provides its clients with a higher level of personal service. Each member of the Shekter Dychtenberg team is focused on serving the needs of our clients and achieving the best possible results. Once you get to know us, you'll be part of the Shekter Dychtenberg extended family and hopefully, a life long client.

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