Protecting Your Clients From Their Own Social Media

Before the advent of social media, the most feared type of surveillance was the video tape. Defense lawyers and insurance companies routinely spent tens of thousands of dollars in the hopes of landing a 30-second video showing the plaintiff engaged in an activity that he could not possibly do if he was as badly injured as he claimed. Stories are legend in which the injured plaintiff was videotaped changing a tire, running, skiing, walking with ease up and down stairs or shoveling snow. While each of these activities had the potential to severely damage the plaintiff’s claims, it was a given that the videotaped footage would depict the plaintiff outside of his home. Indeed, it was “off limits” for the videographer to surreptitiously tape inside the plaintiff’s home. But with the advent of social media the boundary of the front door is a thing of the past. Now, with little more than the click of a mouse, insurance companies and defense attorneys have a window “inside the home” and into the life of the plaintiff unlike anything seen before. What was once “off limits” is now readily available and created by the most unlikely of partners: the plaintiff, his friends and family.

Platforms such as Facebook, Instagram, LinkedIn, Twitter, or YouTube may contain photographs, videos, or statements posted by your client or others that have the potential to harm their case. Whether it is a photograph from a trip or simply the daily minutiae of life, social media postings can be a wealth of information for your adversary. Trial attorneys and litigants must fully appreciate the potential impact of social media on a case. Postings of comments or photographs become part of the permanent record on the Internet. There is no such thing as deleting a post or erasing the past. Because of the potentially adverse consequences, trial lawyers are now duty bound to run a thorough social media search of their clients, adversaries, and witnesses in every case. To the extent an attorney fails to conduct such a search, not only will she be at a severe disadvantage in the case but her competence as a trial lawyer can be called into question.

Reviewing Social Media