Whether by the nature of the platform being used or the user’s choice (or perhaps ignorance) of privacy settings, much of what is posted, liked or shared on social media is extremely visible. Easy and quick to use, most of our interactions with social media are fired off on the spur of the moment with little or no thought as to who may be watching unnoticed – ‘cyber-stalking’ – in the background.
Unfortunately, in the context of personal injury litigation, the reality is that social media-happy clients risk causing huge damage to their claims. And I’m not talking here of the tiny percentage of claimants who may be consciously exaggerating the extent of their limitations for personal gain. That’s fraud, clear and simple and, frankly, they deserve everything that’s thrown at them.
Rather, damage can be caused to the claims of perfectly genuine claimants whose social media output, or that of their family or friends – perhaps even a single post – is capable of misinterpretation; information simply taken out of context.
Credibility is king
Defendant insurers and the lawyers representing them are looking for anything at all that might undermine a claimant’s credibility. Credibility is king; certainly, the key to success in any personal injury claim and no matter how innocuous a post may seem, in the context of something said, written or observed elsewhere, it may be ripe for misinterpretation.
In earlier articles on video surveillance we’ve examined the danger of not using clearly defined statements. For example, the claimant that tells a medical expert that they can only walk 200 metres when what they really mean is that they can only walk 200 metres before it starts hurting like hell. Of course, out comes the camera and, well you can guess the rest.
With social media it’s rarely so cut and dry, but a Facebook post by that same claimant or a member of their family stating “a lovely walk today with the family”, accompanied by a smiley photo, is likely to get the defendant’s lawyer quietly excited. Questions, subtle or otherwise, may follow in a variety of guises. Once the social media post is revealed, it’s hoped that the claimant’s answers to those questions will serve to paint the claimant as, at best, an ‘unreliable historian’, at worst a ‘conscious exaggerator’. Remember, lawyers rarely ask questions they don’t already think they know the answer to.
Perhaps the danger of social media is best illustrated by some real examples.
Bradley suffers CRPS, the most painful condition known to medical science. It may not surprise you to hear then that, like most people with CRPS, he also suffers depression. He told a psychiatrist (entirely truthfully) that he now has little social interaction with friends and even the relationship with his family had become strained. On Christmas Day a couple of years ago, Bradley’s wife posted on Facebook a photo of the whole family, in which Bradley was not only smiling, but committing the heinous crime of wearing a paper hat from a Christmas cracker. This was, the Defendant’s medical expert said subsequently, ‘evidence’ that Bradley was not nearly as depressed as he had suggested and was consciously exaggerating the extent of his condition when it suited him. This can be roughly interpreted as, if you’re in pain, you’re not allowed to smile. Yes, it really can be that petty and nasty!
Julia suffers chronic low back pain which severely limits her mobility. Whilst recognising her limitations, as a mother and wife she nevertheless does her best to soldier on. Her husband Tweeted a photo of the family outdoors, with the caption “An exhilarating climb today up British Camp!” British Camp is an Iron Age hill fort in the Malvern Hills and involves a very steep climb. Of course, the defendant thought this was manna from heaven. Fortunately, we were able to produce a text message sent that day to Julia by her husband, which said “What a fantastic view! On our way down shortly.” When he and the children reached the car where Julia had been waiting for them, they all posed for the photograph. As such, the Defendant succeeded only in shooting themselves in the foot by highlighting Julia’s limitations. But this illustrates just how easy it is for innocuous posts to be taken entirely out of context. Without that text message, it would simply have come down to whether the judge believed Julia and her husband.
The perfect solution would be for all claimants to delete their social media accounts. However, in this day and age that is far from an easy decision; particularly so for claimants who are largely housebound and for whom social media may provide a vital link to the outside world. However, privacy setting must be checked and should, if necessary, be changed to reduce visibility from prying eyes. Care must be taken before posting; think “do I really need to post this?” If you must, then ask yourself “could it be misinterpreted? Can it be said in a different way?” Also, friends and family should be warned of the risk. They should be asked to check with you before including reference to you in a post.
It’s all about risk management. To put that risk into context, in recent years a whole new industry has materialised; companies paid by defendant insurers solely and specifically to monitor claimants’ social media activity. They really are monitoring you!
In any event…
As we suggest in the context of video surveillance, a claimant should in any event keep in regular contact with their solicitor. If they have a better day; can walk a little further; can do something for a little longer – they should tell their solicitor. Of course, they should also explain if having pushed themselves one day they are in purgatory the next! An email is better than just phoning as it ensures a paper trail. The solicitor should ensure that information forms part of the claimant’s witness statement or their next supplementary statement. At the end of the day, a claimant’s evidence is just as much about what they can do, as about what they can’t.
Diaries also provide great contemporaneous evidence. Send them each month to your solicitor. Huge detail isn’t required, just a few lines summarising each day; the extent of your activities, the level of your symptoms, how you’re feeling in yourself, anything out of the ordinary. When the claim settles, keeping a diary may prove to have been a waste of time, but for the sake of a few minutes each day, maybe – just maybe – there will come a time when it might just save your claim.