[Music] Hello and welcome to the Millennial Lawyer podcast with personal injury attorney Mark Shirian. I am your host Kevin Rosenquist and today’s episode is the digital footprint: the hidden risk in your personal injury case. Mark, good to see you. 

Great seeing you too Kevin. 

Alright we’re gonna talk about social media and how that’s affecting personal injury cases. So, you

know, in your experience how has the rise of social media sort of changed the way personal injury cases are handled? 

So social media has become a gold mine for insurance companies and defense attorneys. Anything posted online can be used to dispute claims. 

Can you give me an example? Like what have you seen that happens that affects the case to that degree?

So a seemingly innocent post like a vacation photo can be twisted to argue that an injury isn’t severe. So even a check in at a gym can be damaging. 

Wow a check in at a gym, I guess I didn’t really think about that. 

But maybe you’re just using the steam room, you know. Even if you’re trying to substantiate emotional distress and there are photos of you out to dinner with your family with your friends and you’re smiling, you’re having a good time. They will use that against you. 

Wow really that’s interesting. 

If you’re under emotional distress, you know, you might not be emotionally distressed all the time. Well that’s the argument. 

How do social media posts from a client or the opposing party affect the outcome of a case? Can it be good in some ways or is it generally negative? 

Oh I’ll tell you how it could be good. If something has, if there is an accident and it has impacted your life and you posted about the incident and how it’s impacted you or your family. Or there are photos of you injured or in a cast showing some sort of debilitation, then yeah it could help you. But the problem with social media is everybody, for the most part, only posts their highlight reel. So usually it’s going to show you in the best light possible without any sort of issues or ailments or anything like that and that can be used against you because the insurance companies will show that. They’ll try to use these posts to

undermine your claim. 

How do they go about doing that? How do they use the posts to undermine the claim?

So these insurance companies and defense attorneys monitor posts, tags, photos, even private messages. Some of them will hire investigators to dig deeper. We’ve had that where clients were surveilled by the insurance company for a day to try to demonstrate that they’re not really injured. 

Wow, that’s crazy. Does that happen often?

It doesn’t happen often, but it does happen.

What types of posts are particularly damning, if you will?

From my experience, the vacation posts because, number one, it shows you have the money to go on a trip. Number two, you know their perspective is you can’t be that injured if you are able to get on a plane or sit in a car for a long time and go skiing or hang out with your family and friends, drink, have a good time. So I would say vacation photos are the most damaging.

When you get a new client or you take on a new case, what do you advise them as far as social media is concerned? Do you discuss it with them>

It’s definitely discussed, you know, the problem now is it’s impossible, nearly impossible to tell your clients to stay off of social media because for a lot of people, it’s the best way to stay in touch with others. I tell my clients to keep your social media private ,so even if you are on social media it would be very difficult for an insurance company or a defense attorney to access your social media if it’s private. Don’t accept friends or followers that you don’t necessarily know because it could very well be the insurance company or defense attorney or the other party trying to fish for information. 

Are there situations where if you are private that they can still get access to your stuff?

Yeah, if they know someone that follows you, you know, I would keep your friends list private as well. Let’s say on Facebook, for example, your friends list is public, that basically tells them who you are associated with and if there are any mutual friends between your friends. Then, you know, they may be able to access your profile. 

Can they go through illegal channels to get access to social media? Is that something that you can, can you know?

I don’t know what the right term is but yeah that is something in litigation.

Can old posts affect a case?

They do and we typically object to that demand unless our clients did post about the incident on their social media, then it would be relevant because it does show their recollection of the incident. So if they did post something about the incident, that is something that we disclose but just giving the other side full access to social media without anything else, that’s something we typically object to. 

Can there be situations where even past posts can affect a case? You know, like can other things come back to haunt people?

Absolutely. So, you know, even old photos can be misinterpreted. The safest approach is to avoid posting anything, showing physical activity, travel, or even statements about the case should be avoided.

During a personal injury can you share an example of a case where social media played a pretty big role in either strengthening or weakening the claim.

I don’t know so much about a role in the case but I once early in my career worked on a sexual harassment case where the other side found a photo of my client in a bikini. They had threatened to try to use that within the case and I object to that so strongly because if you think of a victim who was sexually harassed, whether it was at work or anything else, you’re going to say that this person is not allowed to wear a bikini and post that on social media. I think it could backfire big time for a lot of these defendants because, like you said earlier, are you not allowed to enjoy yourself, especially if you’ve gone

through something traumatic like an accident or sexual harassment. Does that mean you’re not allowed to enjoy your life? So the defendants also need to be careful with how they attempt to try to exploit photos that they may find on social media. At the end of of the day, we’re human beings and we want to

connect with people and we want to, often when we’re using social media it is a way to express ourselves and just because you’re in an accident doesn’t mean that that should be taken away from you. 

Wow. 

And that situation, we ended up resolving that, never got to a trial because it was one of the first cases I ever worked on and at first, it was hard, it was difficult, did we make a mistake by not telling the client, you know, keep your social media private. But then there are ways of spinning it that may very well backfire.  Also, I will add to this discussion you know I’ve had many cases in the press and a lot of times my clients names unless it’s a Jane Doe or John Doe and it’s brought anonymously their names are published and and and often times photos of my clients are used in the actual article that these reporters are able to

find on social media. So again important to keep your social media private so photos are not able to be obtained by reporters and the public because it’s an interesting thing because when

you’re, you know, when you get into social media and, you know, I’m not super into it. I know a lot of people are but you don’t think about that, you know, you’re not thinking about those kinds of ramifications. Like, oh if I was in an accident or if I had a sexual harassment suit how would this affect me? You don’t, no one thinks about that, so it’s kind of a difficult balance. Well if you have an experienced personal injury attorney then you have nothing to worry about because you will be guided through, you know, best practices with respect to social media and you can avoid any sort of issues with respect to the other side obtaining photos or information about you on social media.

Yeah alright well, final thoughts and advice from Mark Shirian. Thank you for tuning into the Millennial Lawyer Podcast with personal injury attorney Mark Shirian. To connect with Mark, visit shirianpc.com and please like and subscribe to our channel and leave us a review. Mark, thanks so much for your time, had a great time having you here.

Thank you so much.

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