Social interactions are now substantially rooted in social networking sites like Twitter, Facebook, and Instagram. It’s now even a common sense for businesses and professionals to do operations and improve customer base online. The legal community is no exception.
However, mistakes in social media can drive unwanted publicity. It’s not a good idea to be overly outspoken on social media, particularly when involved in a car accident lawsuit. For instance, a plaintiff’s social media post can potentially ruin his or her personal injury claim.
Legal professionals would have to consider their ethical duties before posting anything on public platforms, as well. Lawyers have to be mindful of what and where they’re posting, even it’s meant to be in a personal context.
What are the influences of social media in a car accident lawsuit? And what are the social media obligations of car accident lawyers? Let’s figure them out here.
Social Media Backfires.
Any online posts and comments of a plaintiff, defendant, or even their relatives can be brought up in court. Even insurance companies, regardless of whom they represent, would monitor social media sites and look for any relevant online information that they can use to deny auto insurance claims.
If you’re the plaintiff, it’s understandable that you would want to seek support from your friends and family after being injured in a car accident. Stop yourself from updating your social media feeds during the litigation process as much as possible.
Your lawyer would advise you not to interact online publicly to not develop any evidence against you. Your online posts can be taken out of context, causing a reversal of legal advantage and disability benefits.
Similarly, lawyers cannot make extrajudicial statements on any social network platforms, especially if these posts or comments prejudice a trial. They can only make online statements that defend their clients from any unfair prejudice, as stated on ABA Model Rule 3.6(c), Trial Publicity. They can invalidate any negative claim against their client as mitigation, consequently lessening the prejudicial effect.
Social Media Isn’t a Private Platform.
We often assume that we’ll enjoy personal privacy in our private social media account. But that’s not the case. Online platforms are subject to close scrutiny in the eyes of the public and the law. While social media’s connectivity has benefited various industries, it can wreak havoc to a plaintiff, defendant, and even legal practitioners.
Here are some examples of how social media activities can serve as evidence:
- Casual online comments like “I couldn’t step on the brake on time,” “I never saw him or her coming,” or even “I’m sorry” can be considered as an admission of faults or, worse, contributory negligence.
- Being “active” online on chats or timely updating social media feeds can imply that “you’re okay,” consequently discouraging compensation claims.
- Tagged or posted pictures of activities, such as going on a vacation, cleaning a garden, or eating out at a backyard barbecue, could mean that one’s injuries are not as bad as claimed.
- Criticizing and badmouthing an insurance company online can serve as a sign of bad faith, which can provoke the insurer to avoid negotiations.
- Sharing case information on social media means it’s a public record, which, in turn, negates any confidentiality protections.
It’s also worth noting that lawyers have ethical obligations to preserve and disclose all information with potential evidentiary value to a lawsuit. Maintaining such ethics includes not hampering anything with their clients’ social media activities.
As stated on ABA Rule 3.4, lawyers are prohibited from altering, removing, destroying, or concealing any information with potential evidentiary value. They can’t unlawfully obstruct the opposing party’s access to evidence, as well. Under ABA Rule 3.3, all lawyers are required to act with candor towards the court during discovery.
In layman’s terms, one cannot edit nor alter any social media content relevant to a lawsuit, be it written posts, comments, photos, or private messages. Failure to preserve crucial evidence will result in an unfavorable litigation outcome and a lawyer’s license suspension.
Nowadays, several courts are accepting social media discovery, even if one’s account settings are on “private.” One reason is that social media is a public domain, and anything posted on it is considered as “public knowledge.” Another reason is as follows.
Social Media Data can be Subpoenaed.
It’s legal to subpoena information on one’s social media account. Lawyers can either send a subpoena to the actual social media provider or use a more technically advanced yet legal collection method.
For example, a car accident lawyer in San Diego can access information sheets on subpoena compliance for social media sites provided by the California Court system. These include Facebook, Flickr, Google, Google+, Instagram, MySpace, Twitter, and Yahoo.
Although lawyers can legally collect social media data, they can still face difficulties. For example, social media users can easily edit and remove posts, comments, and messages. If these data contain relevant evidence, lawyers should do dynamic capture, or preferably, content downloading from the provider.
Another is that screenshots don’t show embedded information. They are a more likely inaccurate reflection of any content. If the missing data holds evidentiary value, it can serve as a Rule 3.4 violation.
In addition to this account, lawyers should implement ethical, social media collection practices during discovery and trial. They should provide all key data in the production with proper authentication of all types of documents and information.
Lawyers of the defendant or the opposing party cannot add any witnesses on any social media platforms to collect data. Advising clients to friend request any involved person for the same motive is also considered unethical.
In fact, contacting represented persons, connecting unrepresented people, and doing deceitful actions are all violations of both ABA Rule 4.2, Rule 4.3, and Rule 8.4(c), respectively. Even if a lawyer’s friend request seems harmless, it’s still a questionable and unethical action during active litigation.
Takeaway
The Stored Communications Act (SCA), under the Electronic Communications Privacy Act, can protect social media accounts. However, when it comes to discovery in a car accident lawsuit, the SCA can’t make any social media posts “private.” This aids lawyers to easily make or break a car accident lawsuit.
