This question affects many personal injury cases, as over two-thirds of New Yorkers regularly use social media platforms.
As outlined below, Facebook posts and other social media posts and likes could have either a positive or negative impact on your claim for damages.
So, if you were hurt in an accident, think before you hit send. A random social media post could either make or break your claim.
There is a lot at stake for accident victims.
Compensation in a personal injury case usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.
Additional punitive damages might be available as well, in some extreme cases.
How Relevant Are Social Media Posts?
The standard of evidence in civil court is rather low (a preponderance of the proof, or more likely than not).
The bar for admissibility of evidence is rather low as well.
The proffered evidence, which could be a social media post, a witnesses’ testimony, or physical evidence, must only be relevant.
It must make a material fact either more probable or less probable.
Examples of relevant social media posts include pictures of the accident scene, positive or negative comments about the accident or the tortfeasor (negligent actor), and a discussion of one’s accident-related injuries.
A few exceptions could apply. For example, some evidence is relevant but unfairly prejudicial.
This category includes things like racist or sexist remarks directed at the dog owner or similar remarks directed at a negligent medical device manufacturer.
Privileged discussions, such as doctor-patient, attorney-client, and priest-parishioner, are generally inadmissible in court.
The same thing goes for certain criminal history information and some character and prior act references.
Authentication could be an issue with social media posts. Technically, anyone with a username and password can post anything on a social media account. Furthermore, unauthorized hacks are rather commonplace.
There is a presumption that if you send a letter to someone and the letter has the correct address, the person received the letter.
That same presumption applies to social media posts. Likewise, there is a presumption that the account owner was also the poster.
The challenging party must rebut this presumption with relevant evidence.
Accessing files might be an issue as well. Facebook and other platforms have tools which allow users to download all their posts, but these tools are unavailable to nonusers. Additionally, viewed internet content using keywords like “accident” or “injury” might not be as meaningful without the metadata.
Generally, posting on a whim or posting in anger can create some significant fallout. That’s especially true in this context.
Pictures are a good example. Most victims claim that they sustained significant noneconomic damages. Fun Instagram pictures undercut these claims.
Do not delete unfavorable social media posts.
Even if they do not pass the aforementioned admissibility standards, they are almost always relevant enough to be subject to discovery.
Courts are now imposing significant penalties on litigants who intentionally evade social media discovery.
That includes activities like “cleaning up” the page by removing unfavorable information and temporarily deactivating the account in order to answer “no” to a discovery question about existing social media accounts.
Social media posts can also strengthen your claim.
Many people post pictures of things like vehicle damage on their social media accounts. If other people make inappropriate comments, an attorney can usually redact these comments.
Medical bills are another example. Typically, these records have plenty of diagnosis, treatment, cost, and other cold, hard facts. But they are missing the human touch.
Social media posts often fill in the gap. People routinely post items, especially on Twitter and Instagram, about the way they feel on a certain day.
Friends and family members might post similar things. If they notice a change in your demeanor, that post is probably relevant to the issue of damages.
Typically, New York jurors respond very well to technological evidence, including social media posts.
That same principle applies to other electronic evidence, such as Event Data Recorder information. A car’s EDR is a lot like a jet plane’s black box flight data recorder.
So, in general, the more favorable electronic evidence used at trial, the better.
Social media evidence is a two-edged sword. It can help you or hurt you. For a free consultation with an experienced personal injury attorney in New York, contact Napoli Shkolnik PLLC.