The internet, smart phones, and social media have collectively created a giant, online data base consisting of written journal entries, pictures of social occasions, and home videos which give details of our daily activities, nights out, trips, vacations, and outings. All this information is neatly organized by date, time, and place. These online journals give details regarding our work, family, recreation, vacations, daily routines, accomplishments, emotions, and activities. The information is public, and even if its private, a good opposing lawyer can sometimes access it.
This giant online database serves as future evidence and exhibits which can be used against us in court to give relevant evidence in almost any lawsuit. For instance, in a personal injury and workers compensation claim, our social media accounts can display a picture of complete health, when in reality, we are still in unrelenting pain. In divorce and custody court, we can unknowingly expose intimate secrets when we want to protect our privacy.
The biggest irony is that we can expose ourselves every time we type on the keyboard, or take a selfie with our cell phone. We give our opponents the ammunition to be used against us. These journals are never erased and are permanent. I must emphasize just how damaging this online content is because it often contradicts our testimony in with our own statements and images. We create these social media journals because we want to remember special times, events, experiences, and emotions, and we crave connection.
What can we do to protect ourselves in court? When we post online, ask yourself, do I want the whole world, or at least, my litigation opponent to know what I’m posting? If not, don’t post it.
What if content is already up and it’s time to testify? Before you testify, review your account and journals and use it as a reminder of what you’ve done, and where you’ve been. Assume your social media account will be used against you. My experience with my clients is that when they testify about their injuries and disabilities, the emotion from the pain causes them to dramatize and use extreme language in describing the impact from the injury. There can be a difference between the reality of the journal and the description of the effects from injury presented months or even years afterwards. As a witness, you don’t want to create an appearance that you’re lying by contradicting yourself because a judge or jury will assume you’re lying even if you make an honest mistake. This will cost you money, potentially a lot.
The solution? Be aware that when you post on social media, the information is displayed to the world. Not just friends and family, but legal adversaries. Posts can be disclosed even if you have a restricted or private account under certain circumstances. Remember, you don’t have to be the one doing the posting. Other people can take a picture of you and tag you on Facebook, so your information or image might be public even if you’re not active on your account. Review your social media before you testify, and don’t contradict what’s public when you testify.
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