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The Pitfalls of Posting: How Social Media Can Be Used Against You in Court

Electronic communication has become the main way that we connect with our family, friends, and coworkers. Text messages, emails, and social media postings are convenient and effective, but they can also spell trouble when you pursue an injury claim against the railroad. This article examines the potentially serious impact of electronic communications on your injury claim, from a trial lawyer’s perspective, and provides guidelines to effectively manage your written communications and social media activities after a workplace injury:

Once you click “post” or “send,” electronic communications are out there forever. They are preserved in an electronic record for anyone to find. From the moment you report a workplace injury—even before a lawsuit is filed—it is likely that railroad claims representatives and their lawyers will search for your social media postings for information that they can use to challenge your injury claim. During litigation, courts often allow the railroad to obtain a record of your private communications, cell phone records, and online posting of comments and photos in the hope of discovering statements about how you got hurt and your activities before and after the incident that are inconsistent with a claimed disability. Even when social media is posted by your family or friends, it can still be discovered. Here are some general tips on how to minimize these risks:

  • Avoid electronic communications about the injury incident itself, including how it happened and who is at fault. Discussion about these facts and opinions with others before consulting with an attorney can prevent the assertion of valid legal claims later.
  • Don’t use electronic communications to discuss advice provided by your attorneys’ office. This could be construed as a waiver of your attorney client privilege that otherwise ensures your communications are private.
  • Avoid electronic communications about the extent of your injury, symptoms, and treatment. While it is natural to reassure loved ones you are okay, especially when the adrenaline is running high and before you’ve been evaluated by medical specialists, these communications often downplay the extent of your injuries in an attempt to comfort your loved ones. But, later, they can be used by the railroad to argue your injuries were not very severe. If you want to communicate how you are doing, it is best to do so verbally in private conversations in person or by phone when no one else is present.
  • Set your social media pages to “private” and have your immediate family do the same. You can find instructions on how to do this on the internet or just ask your 15-year-old relative- they will surely know how! This privacy setting allows you to identify the few friends and family you allow to view content on your social media page. Beware that some social media platforms, like Tiktok, cannot be made private. And, even if your pages are set to “private,” you should still be cautious about what you post online, because the railroad’s lawyers may ask the court to require you to produce downloads or copies of certain “private” posts and photos from social media.
  • Avoid posting/sharing photos of family events, activities, and trips on social media because those too can be used to diminish the amount of your disability. Although you may be asked to disclose this information during a deposition, oftentimes a few photos can project a happier and more active you than what really occurred. For example, photos of someone who is recovering from back surgery, getting on a boat and riding around on a lake, will not show the pain that person experiences the next day. Even seemingly innocent posts can have major consequences. Photos of a family trip to Mexico to celebrate a special event, even if prepaid and planned years in advance, can convey to a jury that you are wealthy and don’t need compensation, in addition to thinking that you are not hurt. Your social media posts are unlikely to actually help your case.
  • Explain to your friends/family that their social media posts may be targeted by the railroad’s prying eyes as they look for any evidence to hurt your case. They should also be careful about who they talk to and what information they share in person or online until your case has been completed.
  • A final and easy to remember rule of thumb, don’t post anything online unless you are comfortable with a jury seeing this in your injury trial.

If you have any question about social medial or need assistance with a railroad injury case, the attorneys of Schlichter Bogard are here to help.

Article by Jon Jones, Associate Attorney

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The information contained in this newsletter is provided for informational purposes only and does not constitute legal advice. Reading this newsletter and information contained herein does not constitute formation of an attorney-client relationship. Every potential case must be assessed in accordance with its unique facts and circumstances. If you believe you may have a legal claim, please request a free, confidential case evaluation with our team today.