By Kara H. North, associate at Fillmore Spencer LLC
In my legal practice, I primarily represent individuals injured in automobile accidents. Many of my clients experience significant physical and emotional injuries. If given the option to choose between avoiding the injury or going through the litigation process, even with the prospect of a potential settlement, every client would avoid the injury. However, when litigation is the only option to obtain fair compensation for my clients’ injuries, I inevitably end up on a lengthy social media search of not only my clients’ accounts, but also those of the opposing party.
In a day and age when there are over 2.41 billion active users on Facebook, it’s all too easy to obtain personal information or photos that may be relevant to the case. If my client is complaining of a serious back injury and suddenly posts a picture of themselves rock climbing, I want to know. Why? Because if I’m searching their social media, I can be confident that the adverse insurance company is, too.
Almost weekly, national news outlets share stories of individuals’ senseless social media posts jeopardizing their legal case. In 2014, one daughter’s social media post about her father’s “confidential” settlement with his employer resulted in the courts terminating the settlement agreement due to the father breaching the terms, which precluded him from discussing it with anyone other than his attorneys or accountants.
Judges are reporting new challenges associated with interpreting emojis and emoticons in communications between legal parties. What is the context surrounding that winky face emoji? Divorce attorneys will tell you that one spouse “venting” or posting unkind words about the other on social media is some of the best evidence available, as long as it’s not their client who made the post. In addition, the state of Florida has determined it is legal malpractice for attorneys not to search the social media of potential jurors in criminal cases and learn more about the individuals making the critical decision of innocent or guilty.
Our own firm had a case years ago, where our client was seen in a video posted online engaging in destruction of property. The video quickly went viral resulting in the client being charged criminally and coming under national scrutiny. It also jeopardized the client’s claims related to an injury based on the actions in the video. What was only a few seconds of footage and took even less time to post, resulted in significant emotional and financial heartache. As this client learned, once it’s online, it lives forever.
Take the wise advice I read while scrolling through my own social media: “While you may want to dance like no one is watching, email, tweet, or text like it will be read in court one day.”
Originally published in the 2019 September/October issue of Utah Valley Magazine.