Josh and Aaron discuss the importance of discernment when it comes to posting on social media, especially during a personal injury case.
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0:00:00.0 Speaker 1: Hey, Aaron.
0:00:00.7 Speaker 2: Hey, Josh.
0:00:01.4 S1: Hey, man. Have you posted on Facebook today?
0:00:06.0 S2: No, I’m off.
0:00:06.8 S1: You’re off the Facebook?
0:00:10.3 S2: Yeah, I actually didn’t close the account or anything weird like that because I have to know if one of my cousins or posting something odd, you know how it is? Post COVID, things get weird. But yeah, I’m off. How about you?
0:00:26.6 S1: Don’t you think it’s like a really good idea always in every circumstance to post everything about your life all the time?
0:00:33.0 S2: I can see someone living that way. That’s one way to live for sure.
0:00:37.7 S1: Do you think that would be a good way to live if you were involved in a personal injury lawsuit?
0:00:46.1 S2: That is, decidedly bad as a, yeah. No, don’t do that. Clients don’t do that please.
0:00:51.5 S1: Why?
0:00:54.3 S2: So we will fast forward to the point in the deposition where the lawyer’s like, well, tell me about volleyball on this day. Person who just said, you cannot get off the couch and even move. It’s not good to have that documented. Of course, for us at FEF I’ll tell you, we have had very little trouble with this in part because we have the best clients in the world. We have done a good job, I think of branding and letting people know what law firm we are, and we seem to attract a type of client. I’d like to think that’s a cut above, who probably could just live stream their whole life and not get quote unquote “caught” in anything. At the same time, as you know from social media, and one of the reasons I’m off social media is that there is literally nothing you can say online that someone else won’t have a problem with. And so best policy for me is just don’t say anything.
0:02:03.0 S1: Yeah. It’s for many, many reasons. We all know social media is a blessing and a curse. I don’t need to wax eloquent about that, but practically speaking, we know that oftentimes what people post on social media is a perception. It’s not really reality. People that are habitually just posting the most positive aspects of their lives without balancing that out, by also posting about the more realistic aspects of their lives or even the negative aspects of their lives. And there’s a whole bunch of psychology and medical journals writing about the impact on people’s psychology here, and the personal injury space. Why is that important? Well, imagine to your point earlier that you’re pursuing a personal injury claim, and a big part of your damage is the fact that you can’t really hike nearly as much as you used to, or you can’t kayak as much as you used to or do all these physical activities that you enjoy engaging in.
0:03:21.9 S1: And then during the pendency of your personal injury case, even though you’re in pain and you’re entitled to live your life while you’re in pain, you get on a plane and you go to Mexico and you go on a very short walk in a curated jungle of some sort, and you snap a photo and it looks like you’re out doing something really rugged. And that photograph gets used by the defense to paint this perception that your life might not really be as impacted as it is. And while yes, you can have the opportunity to explain yourself.
0:04:04.6 S2: If you’re explaining, you’re losing.
0:04:06.5 S1: If you’re explaining, it’s just an avoidable problem. It’s just an avoidable problem. On the other hand, I have used prior posts of people engaging in all sorts of different types of activities before an incident occurred to really highlight the type of life that they were in fact, living prior to the incident at issue. But if you’re a plaintiff in a personal injury lawsuit where you’re already going to be having to go face to face with an adversary who literally has a doctorate level education and how to make you look bad, the best advice would be to give them the least ammunition that you possibly can. And it goes beyond just photographs. It goes to, as you were stating earlier, you expressing really strong opinions about things that might be culturally insensitive or just insensitive in general.
0:05:20.7 S2: Or just unaware of how different people of different ages think about different problems on earth. You just maybe haven’t even conceived that someone would think differently about a particular thing. And so you post it very innocently, and it might be just part of your generation, maybe in your generation this was just something you said, you didn’t think it was a political statement, but then somebody from another generation might see it and saying, oh, well that’s an indictment of my entire life. And you don’t want that person to be a juror [laughter] who’s judging your case. They’re told not to look you up. They’re told not to go on the internet during their service, but, we all know that they probably do. Likewise, we can see where jurors are at. You make your profile public, all of a sudden, what you think is your Facebook page is just an internet website.
0:06:19.9 S1: Yep.
0:06:20.5 S2: That everyone can see. And that includes lawyers who are getting ready for trial and have a stack of jurors in front of him, and they have a duty to their client to find out if there’s any prejudices that would harm their client that would, make you come in with an unfair judgment. And, so if you’re a juror out there, please post away. [laughter] Yeah. So that we can learn a little bit about you. And that’s not to say we’re spying on people, but again, if you’re setting your profile to public, you’re making it basically an internet website, and you’re putting stuff out there that you may not realize could, harm you in a very critical situation. We’re not talking, personal injury law, the same case tried correctly, can result in sometimes tens of millions of dollars differently. The outcome can be different than the a case that’s either improperly tried or tried without the optimization that comes from managing every detail, which is what our job is.
0:07:28.6 S1: Yeah. Absolutely. I remember really early in my career, I had a client who had been on his bicycle and got hit. And there was a dispute about the liability who had caused the crash. He said, she said type story. And we got on Facebook and the insurance company was trying to low ball our client, which we never would’ve allowed. But we got onto Facebook and dug into the, at-fault driver’s account, and just mined all these photos of him smoking bongs and had a mouthful of joints and one pic, like 10 joints in his mouth. Really not great public photos out there that painted a picture about how this person was living their lives and most importantly, a propensity to get intoxicated. And we were able to get those photographs over to defense counsel and the immediate response was, yeah, we’re tendering our policy limits here.
0:08:38.9 S1: It makes a huge difference. And we’ve had to fight those battles on the other side where a picture pops up that got mined somewhere where our client’s doing something that seems contradictory to what they are saying they are, are not incapable of. And it’s just one moment in time where a person was trying something. And it’s taken out of context frequently, but you got to deal with that. And again, the best thing to do is to avoid having to deal with that in the first place by just censoring what you’re saying, censoring what you’re doing and understanding in the real world, people have a hard time believing this in the real world, insurance companies are paying people to surveil you. They have happens. Human beings following you around, parked outside your house, parked outside your work, filming you doing things. This is normal insurance company behavior. And if you think that they’re not on your Instagram page, 100%, your Facebook page mining that data, you’re dead wrong.
0:10:01.4 S2: Yeah. It can greatly affect your case. And I think if you’re out there thinking to yourself, well, I do have a really serious injury, but I’m worried that I’ve maybe posted a bunch of stuff in my past and I’m afraid that they’re gonna read into it something, it’s not even who I am anymore. Or whatever you’re thinking, you’re nervous about it, get some advice. Because part of our job, and we hate to have to be in this role, but we often are in this role of making sure that what comes into the evidence is actually relevant to the case. And so if it’s not relevant to who caused the harm or how it was caused, or what the harms were, it really should not come into court. Now, it can come in for credibility purposes, you can’t lie about it.
0:10:47.5 S1: Sure.
0:10:47.9 S2: This is the thing we try to get through to every client. And honestly, again, we don’t have a big problem with this in our law firm, fortunately. But the fact is that all these things that you’re worried are gonna come into court won’t, as long as you’re open and honest with us and with opposing counsel during, say, deposition, we can get that all cut out later. So if you’re worried about that, give us a call so we can give you some advice on it, but generally, let’s try to keep it to a minimum.
0:11:18.6 S1: Yeah. Absolutely.