CHAPTER NINETEEN SOCIAL MEDIA CONSIDERATIONS IN AUTOMOBILE ACCIDENT LITIGATION

• Jurisdiction: Maryland

CHAPTER NINETEEN SOCIAL MEDIA CONSIDERATIONS IN AUTOMOBILE ACCIDENT LITIGATION

Matthew J. Focht, Esq. Malloy Law Offices, LLC

ABOUT THE AUTHOR

MATTHEW J. FOCHT received his B.A. degree from Loyola College in Maryland (now Loyola University Maryland) in 1995. He attended Catholic University of America, Columbus School of Law, graduating in 2001. Mr. Focht is a trial attorney at Malloy Law Offices, LLC, where he practices personal injury law. He is a member of the Montgomery Inn of Court and the Maryland Association for Justice.

I. INTRODUCTION

Extreme caution must be exercised when posting to social media. Examples abound of dire consequences resulting from one offensive social media post. A personal injury case is no exception to the rule calling for careful use of social media. To be certain, social media presents nothing short of a threat to navigating an auto accident case to a successful resolution. Social media evidence is now routinely presented to juries, and there can be little doubt that it is now standard procedure for attorneys and insurance adjusters to hunt for social media information that can be used to build a perception in the mind of a fact-finder that an injury claim is unsupported, if not fraudulent.

For this reason, claimants must be counseled from the moment a case begins that anything posted on social media can, and probably will, be used against them. And whatever is posted will be there forever, unless deleted (which should never happen, see below). In this regard, social media hands claimants the means to cause a grievous self-inflicted wound to their own case. Time has proven that the surest way to avoid trouble on social media is simply not to use it. At a minimum, a claimant should boost the privacy settings on their social media accounts to the highest possible degree so information cannot be seen by members of the public that are unaffiliated with the claimant. The claimant also would be well-advised to ask family and friends to avoid commenting about the claimant's life on social media and not to tag the claimant in any posts while the case is pending.

II. INFORMATION THAT SHOULD NEVER BE POSTED ON SOCIAL MEDIA BY AN AUTO ACCIDENT CLAIMANT

Clients should be advised not to post information on social media about their accident. Such information can only be harmful. Indeed, a social media post is but a snapshot in time, and injuries that initially appear minor may develop into a serious condition requiring extensive long-term treatment. By its very nature, a social media post cannot capture the idea that situations change and that what was an accurate statement at one point in time is not necessarily going to be the case forever. Also, sarcastic or self-deprecating statements about an accident or a claimant's condition do not translate well to writing and are almost certain to be misinterpreted. The best practice is not to say anything on social media that may later have to be amended or "walked back."

Given Maryland's strict contributory negligence law, claimants should not make any statements on social media that could be interpreted as admitting that the happening of the accident was caused by the claimant's inattentiveness or negligence, even to the slightest degree. Such statements are certain fodder for cross examination in a deposition and at trial. Again, the best and safest course of action is for the claimant not to comment on the accident in any way outside of controlled situations supervised by an attorney (i.e., a deposition, trial, and/or alternative dispute resolution session). Likewise, a potential defendant's admissions and comments should not be posted.

Also, claimants (and their family members or friends, for that matter) should never comment on social media regarding the value of their case or expecations. The value of a case can only be harmed by written evidence suggesting that the claimant is claims-minded. On the other hand, it equally harmful if the claimant vents over social media about unfair treatment by an insurance company or opposing counsel.

Finally, a claimant should never post information disclosing what their attorney has said about their case. Such a statement destroys the confidentiality that is vital to the attorney-client relationship and jeopardizes the success of the case.

III. EVEN OTHERWISE INNOCUOUS INFORMATION CAN BE HARMFUL TO AN AUTO INJURY CLAIM

Counsel must also pay attention to information posted on social media that would be...