A blog posted by John Patzakis on the eDiscovery Law and Tech blog really caught my attention. The article discussed a case where an attorney and his client were both sanctioned for removing posts from the clients Facebook account. “A Virginia state judge ordered lawyer Matthew Murray to pay $522,000 for instructing his client to remove photos from his Facebook profile, and for his client to pay an additional $180,000 for obeying the instructions. According to the final order in Lester v. Allied Concrete Company.

Murray instructed his client to remove several photos on his Facebook account due to fear that they might prejudice his wrongful death case brought after his spouses’ fatal automobile accident. The instructions were made through Murray’s assistant. The assistant’s email to the client, Isaiah Lester, stated that, “We do not want blow ups of other pics at trial, so please, please clean up your Facebook and MySpace!” According to local press reports, Murray quit his job as managing partner of the largest personal firm in Virginia and he no longer practice law.

Facebook has now been widely used by lawyers, investigators, insurance company and even the police. Some information may serve as grounds for discovering cases of deceit that might win a case. An intentional hiding, altering or destroying of evidence relevant to a legal proceeding is considered spoliation of evidence. Parties who engage in spoliation may face legal consequences. In the situation of Murray, the case he handled costs him a large amount of money and ended his career.

As a personal injury attorney, everyone should be extremely careful as to what they post on social media sites. Their posts may do more harm than good. Once a post is made it is there forever!  Even if it is later removed there are ways to bring those posts back.  Education is the key to the proper use of Facebook.  I have told many accident victims who have came to me for their Kentucky accident case to never post anything that you would not be comfortable with their mother reading in the paper.  I guess that dates me, but you get the point.

Facebook is everywhere. I am on it.  My kids are on it.  Even my mother-in-law is on Facebook. Millions of people are using it every day. It is a social networking site that can be useful, addictive and an important source of information. Facebook is a tool utilized by employers, investigators, police officers, lawyers and even by insurers to do background checks.

Through Facebook lawyers have found evidence for cases of fraud, police have caught criminals, and insurance adjusters have collected information that would lower the value of insurance claims. Insurance companies are now monitoring social media sites. This may take money from accident victim’s pockets. Check out this news story from Seattle that shows how posting on Facebook can lead to lowering the value of your personal injury damage claim or delay you receiving medical treatment for your injury.

I can tell you that this guy wasn’t smart about it but in my opinion the insurance company over reacted. Kurt Norland posted pictures of himself drinking a beer and hanging out at the beach while he was collecting worker’s compensation benefits. Based on the pictures his benefits were cut off and a shoulder surgery postponed. This was done by the insurance company even though an MRI showed a rotator cuff tear. Did Norland deserve this treatment from the insurance company? Probably not, but he put himself in this situation by not monitoring his Facebook account and making his posts private. Never post anything on Facebook or any social media site that in any way could lower the value of your personal injury claim. His case was eventually won by his attorney, but I am sure the delays and the fact that no benefits were being paid was frustrating.

Another person posted a video of him pulling kids on an ATV while collecting disability. A lady was tagged in photos showing her taking helicopter flying lessons while she claimed to be severely injured. If they weren’t hurt this may be insurance fraud, but what were they thinking? These posts have destroyed their claims at the very least.

As a Facebook, Twitter & LinkedIn one must control the privacy settings. As a personal injury attorney I suggest you mke sure that your profile, photos, videos and posts are only visible to your friends and not to everyone else. It is also important to choose your friends well. You might approve someone you don’t know whose job is to investigate you through your Facebook account. In some cases even the apparently irrelevant is twisted to make you look uninjured or to be lying about your injury. Insurance companies might find something that could ruin your insurance claim and cave you to receive less then what you deserve or nothing. The bottom line is, check what you post and be in control of your privacy settings.

In today’s world, the king of social networking service is FACEBOOK.  We use it to communicate with friends, family and co workers.  As of January 2011, Facebook had more than 600 million active users that share details about their personal lives. Most do not realize that their private photos, opinions, relationships and activities can easily be access by other people.  You may think that it’s cool to share your personal life and events on this social network every post can be used against you if you are involved in a Kentucky car accident.

Lawyers, insurance agents, employers and school officials use Facebook to lookup your private information to judge your character and activities.  Even personal injury attorneys like me are using it. The CIA has been using it since December 2006 to recruit potential employees into its service.  The study says that more than 53% of employers research potential job candidates and 76% of college students use Facebook in a manner that will tarnish their opportunities for a job after graduation.  To me this statistic is unbelievable.  As I have told my daughters, “Don’t post it unless you want to read it in the paper tomorrow”.

The Wall Street Journal reports that lawyers investigating potential jurors use Facebook.  It’s a useful source to collect information such as religious beliefs, drug and alcohol use and even conversations with friends.  It is commonly used by personal injury attorneys in investigating a car accident, divorce and other cases alike. 

If you are a seriously injured accident victim, Facebook can be of help.  Your attorney can research information on the one who injured you.  Information can be gathered such as whether he’s into drinking, posting on Facebook, using a cell phone while driving, and other information that could be used against him. 

As a Kentucky personal injury attorney, I advise my clients to protect themselves and to make sure your privacy settings are secure.  I ran across an infographic entitle “Who Is Watching You On Facebook?” that discusses how officials use your private information and on how to set your privacy settings on your Facebook account.  Check it out, the statistics will surprise you.

Every one is tweeting on Twitter and posting on Facebook.  We are walking down the street with our smart phones checking out our friends. Social media is everywhere. Employers have been looking at these sites for years to determine whether or not to hire somebody.  What happens if someone injured in a Kentucky car wreck posts on Facebook? Who can look at it? Is it just who you want to look at your posts?  

Defense attorneys and insurance adjusters have been looking at social media sites to get information on YOU in an attempt to deny or limit your recovery in your personal injury claim. This is whether it is from an auto accident, bicycle accident or dog bite. 

It is only a matter of time before Kentucky courts start to hear cases on social networking sites. Courts in other states have already made rulings on social media issues.  Here is the question. Are Kentucky Courts going to force an accident victim to give access to their social networking sites to the attorney who represents the person that hit you?  The answer is not clear at this point in time.

Here are some points that Courts in other states have looked at. One question involves privacy settings.  Just because you make something private is it really private to the Courts? Will checking the private box be a barrier to the defense seeing what you posted?  By making settings on my account private I do not intend for everyone to see what I have posted or what is on my profile.  Colorado Courts have allowed Wal Mart to subpoena information from Facebook, MySpace and Meetup because they felt the information sought was relevant and reasonably calculated to lead to the discovery of admissible information. This is legalize for we don’t know if it has anything to do with the case but it might.

Courts have allowed defendants to view social media postings in a variety of situations. In a case where a child had an eating disorder the court said that information posted on a social networking site may show that the disorder came from something other than what is alleged in the lawsuit.  So the plaintiff had to turn over access to the site to the at-fault party and their insurance company.

In Connecticut the Court allowed a defendant to view Facebook accounts stating that it was a snapshot of the plaintiff’s state of mind at the time they were harmed.  New Jersey has a similar ruling. This is disturbing to personal injury attorneys and Kentucky automobile accident victims. If this standard is adopted in Kentucky just about any fact situation in any accident would lead to the court allowing the at-fault party’s attorney and insurance company to look at your Facebook page. 
           

Courts in jurisdictions, including California, have concluded that by posting online you have acknowledged that the information you are giving is not intended to be private no matter what the privacy settings are in place on your account.  If you post it on the internet and you are involved in a lawsuit they are going to let the other side see it.

This means that accident victims must be very careful about what is posted. A recent California case found that private Facebook and MySpace communications between individuals could not be subpoenaed.  So maybe your wall postings are safe, maybe not.

 To date there has been no cases heard in the Kentucky Courts.  We do not know what will happen in Kentucky. Caution is in order. Be CAREFUL! Here are a few tips: 

• Look at your privacy settings and set them to block anyone other than people you know from viewing your site.
• Do not post anything that discusses your lawsuit or accident case.
• Do not discuss your injuries in your postings.
• Do not post photographs of you attempting or doing any physical activity that you are now unable to do as a result of your injuries from the accident.
• Make sure your friends don’t post any of the above.
• Do not accept friend invitations from anyone you don’t know. They could be working for the other side!
• Take a look at your friend list. Remove anybody that you don’t know.   

Just be smart so that information posted on social media sites can’t be twisted and used to make you look untruthful or not injured. Taking these simple steps will help prevent unwanted information getting to the other side and maximizing the value of your Kentucky accident case.

          What is cyber sleuthing? What does it have to do with a Kentucky accident victim?  Everybody has heard of Facebook, MySpace, and Twitter.  You are living under a rock if you haven’t.  What’s does social media have to do with your Kentucky car, motorcycle, bicycle or truck accident case?  If you have been injured in a Kentucky car wreck you need to be very careful with what you post on your Facebook or Twitter account, or any social media for that matter.

            Why? We have all heard the stories of professional athletes getting in hot water for their twitter posts.  We know employers check out your social media profiles before they hire you for a job.  Insurance adjusters do the same thing. If information is available on the internet that will help the insurance company defeat your Kentucky accident claim the insurance company will try to find it.  A cyber sleuth will look every where.  An insurance adjuster will search social media sites to see what information they can find to see pictures of you having a good time. Doing things you said you were unable to do because of your injuries in the auto accident. They will look for videos of you bowling, golfing or mowing the grass. They are looking at the dates of those pictures and videos. They are finding out who your friends are so they can interview them. Why are they taking the time to look at all of this?  To see if there’s something the insurance company can use to decrease the value of what they’re going to have to pay you for your accident claim.

            I have a friend, Chris Davis, who is a personal injury attorney in Seattle, Washington.  He had a client post a video of himself snowboarding.  That video on Facebook was seen by the insurance adjuster, down loaded and .  The insurance adjuster  lowered the offer $20,000.00 because he saw him making a jump on a snowboard. The post cost him thousands of dollars. Maybe it was harmless, but the perception was that he had fully recovered.

             Be smart. Use your common sense. If you’re going to post on Facebook, MySpace or Twitter, make sure your privacy settings are not public, that your private information is protected and access to your profile is limited. Don’t let anybody view your profile and your personal information unless they are your friend. 

              Make sure you know who ALL your friends are. If you don’t your friend could be the kid of the insurance adjuster on your case.  If you’re going to post Facebook be careful. Be smart about what you’re posting.  Don’t post anything that you would not like to see read in the paper the next day. By using common sense and remembering this you will help your personal injury attorney get you the best settlement value in your Kentucky accident case.

I recently blogged on a case were a Facebook and Myspace post of a snowboarding video cost a car accident victim $20,000.00. Chris Davis’s blog on this case has received national attention and  and has lead to Seattle Attorney Chris Davis being featured on the Legal Broadcast Network. Davis states that 30 days before trial he was notified by the insurance adjuster that they had a video of the client snowboarding and going over jumps. This post damaged the accident case and cost Davis’s client $20,000.00 in his recovery. Davis states that the problem with such a post goes to the jury perception of his client. That is whether the client is exaggerating or making up his injuries.

As a trial attorney representing accident victims I know it can be difficult to convey to a jury the gravity of the injury sustained in a car accident in a 2-3 day trial can be difficult. This job is even tougher when a video of physical activity is shown, even if it was taken a year or two after the accident. As an accident victim you do not need to make it easier for the insurance company to defeat your case.

I advise my clients of the dangers of posting on social media sites and how these post can affect their Kentucky accident case. I have previously talked about what can happen and what you should watch out for.

As an accident victim it is important to take listen to and follow the advise of your attorney. My tag line is “Don’t Get Hurt Twice”. Unfortunately this is what happened to Mr. Davis’s client. He didn’t follow the advise of his attorney and he got hurt not only by the car accident but by the insurance company which does what ever it takes to lower the value of his accident settlement and keep the money in their pocket. Use common sense and listen to your attorney so you don’ end up in this situation.

Last month I wrote a blog warning Kentucky auto accident victims that information placed on an accident victim’s social networking site can have an adverse affect on the settlement of their case.  You may have thought that this was Chicken Little yelling that the sky was falling, that I was a little paranoid. Unfortunately a friend of mine, Seattle attorney Chris Davis, has a client that has learned this the hard way. In a blog posted by Davis he tells the horror story of a client that down loaded pictures and videos to his facebook and myspace pages that literally cost him $20,000.00!

            Davis starts his blog with a statement that this is a true story. During the course of litigation Davis’s client posted pictures and videos of himself snowboarding. This was two years after the accident, but before the case was going to trial.  He was going to trial to get compensation for neck and back injuries suffered in a car accident.

Can you imagine the reaction of a jury? They are hearing evidence in a case where the accident victim will be asking for an award of money damages for their pain and suffering. During the trial the attorney hired by the insurance company shows a video of the accident victim speeding down a mountain on a snowboard and then going over jumps, flying several feet in the air and landing with a thump. The case is over at this point.

            I am sorry that Chris had this unfortunate experience. It is horrible to put your blood, sweat, tears and money into a case and work for a client you truly believe in and then have your hard work fall apart before your very eyes. I do want to thank Chris for posting this information so that we can all learn from it.

            You need to be extremely careful in what you post on your facebook, myspace, twitter, etc. You don’t know who will be able to gain access to the information. It may be a potential employer. It could be an insurance adjuster playing cybersleuth. Whether you are a Kentucky accident victim or a Washington accident victim you need to protect yourself by being careful. Learn from this $20,000.00 mistake.

      Facebook, Twitter, My Space and other social networking sites are becoming more and more popular not only with kids but with all age groups.  You may have read about employers using these sites to help screen job applicants or to check up on their employees.  There are recent cases where jury verdicts have been over turned because jurors had made updates on their social networking site during the trial.  Everyone is on Facebook. Everyone is tweeting.

      Guess what? These sites are not just for fun and keeping up with friends.  Insurance companies and their attorneys are using these sites too.  Adjusters are checking Facebook, Twitter, etc. and looking at blogs to get information about the accident victim.  There may be valuable information about you on these sites that could severely damage your Kentucky auto accident case.

      The insurance adjusters’ job is to pay you as little as they possibly can on your injury claim. Social media sites and blogs can help them accomplish their objective.  You voluntarily put all of your personal information on these sites.  You load personal photos on these sites.  Friends make comments about you. You put videos on YouTube.  Internet surveillance may be the only investigation the insurance company has to do.

      Why are insurance companies looking at social media sites?

·          To confirm or disprove the severity of your injury.

·          To confirm or disprove your ability to perform activities and sports.

·          To confirm or disprove your ability to work.

·          To confirm or disprove whether you interact normally with friends and family.

      Pictures, videos, personal information, posts and comments can wreck your case.  When you become an accident victim, you begin living in a glass house.  You MUST be aware of how your pictures and comments will be viewed.  Sometimes even the most innocent and seemingly irrelevant things can be twisted to make it look as if you were not injured or that you are lying about being injured.  Just look at what happened to Michael Phelps.

      Even making the pages private may not stop the insurance company from seeing it.  You may inadvertently make a friend or follower out of someone the adjuster knows.  You make a friend or follower out of the law clerk of the attorney that represents the insurance company.  If your case goes to Court, the Judge may order you to produce your social media page.

I know you are not going to quit using these sites, but here are some tips in dealing with your social media pages:

• Don’t post anything you wouldn’t feel comfortable having the insurance adjuster read.

Be Careful!

• Check your privacy settings and block anyone you do not know from viewing your personal pages.

• Search your name on all sites that you are a member of and on Google to see what comes up.  See what photos you have been tagged in and take the appropriate action to remove photos you are not comfortable with.

• Do not accept any friend requests or answer any e-mails from people you don’t know.

THE BOTTOM LINE…USE COMMON SENSE AND PROTECT YOURSELF AS YOU USE YOUR SOCIAL MEDIA SITES.   They are fun and they are addictive, but they can be used against you in many different ways.

Every time you turn on the TV, listen to the radio or even read the newspaper you hear someone talking about Facebook, Twitter, Linkedin and other social networking sites. What does this have to do with someone who has been in an automobile, motorcycle, bicycle, truck or pedestrian accident in Kentucky? Well if you are not careful with what you post on your site it may have a devastating affect on your accident claim. It used to be that these sites were limited to the young. Not anymore. Employers are checking Facebook and Myspace prior to hiring someone. Jurors have used Twitter to comment on trials which has resulted in mistrials.

Guess what? Insurance adjusters are looking at your information on these sites to find any information they can to deny your claim out right or to limit its’ value. They are involved in internet surveillance. For instance, if you make a post about playing basketball the day after an accident this could be used to disprove the severity of your injury. Photos you upload can be damaging as well. A little bit of information can be taken and distorted by the insurance company if you are not careful.

The point is to be careful. If you have been in an accident use some common sense so what you believe to be an innocent post does not come back to hurt you in your accident case. Be aware of what you are doing. A good friend of mine said; “Don’t say or do anything that you would not be comfortable with seeing in the paper tomorrow”. The same can be said with the social networking sites. Don’t end up like Michael Phelps. It may cost you a good result in your Kentucky accident case.