Think before you post
In the past, insurance companies fighting personal injury lawsuits had to hire a private detective if they wanted to catch the victims doing something they claimed they could no longer do.
These days, information about an injured person's activities is as close as the nearest smartphone.
Lawyers defending against personal injury lawsuits now commonly request alleged victims' posts on social-media sites such as Facebook and Instagram. Written comments, photos and videos are all fair game.
That often comes as a surprise to people who have been in accidents, says Faith Morse, a Medford lawyer who represents victims.
"Their first response is usually shock," she says. "They say, 'I get why they would want to get information about my injuries. But why do they get my social-media posts?' "
During the past few years, courts have ruled that socia-media posts can be used as evidence in lawsuits. Lawyers aren't allowed to go on fishing expeditions, but they can request posts relevant to a person's activities and injuries, according to the American Bar Association.
Ryan Leach, a recent North Medford High School graduate, found out his social-media posts could be used in court after he filed a $500,000 lawsuit against the Medford School District in 2015.
"I don't think attorneys should be entitled to roam through all your private communications, hoping they might find something to use against you in order to divert a jury's attention from (the plaintiff's) wrongdoing," Leach says. "It's a huge invasion of privacy and personal space."
Leach's lawsuit alleges a pull-up bar stored on a high shelf at school fell and struck him on the head during his sophomore year.
Neurologists directed him to give up football and wrestling. They eventually gave him permission to snowboard again, but only cautiously and with a helmet, Leach says.
Leach's attorney, Kelly Andersen of the Kelly L. Andersen firm in Medford, is resisting a request by the school district's Salem-based lawyer that Leach turn over social-media posts relevant to the case.
"We objected on the basis that it's overly broad," Andersen says.
He says combing through a client's social-media posts to see whether anything is relevant to a case is extraordinarily time-consuming. In one case, a lawyer spent eight hours looking through posts to see what, if anything, should be turned over to the other side.
"After that, our default position is, 'No,' " he says. "I say to the defense attorney, 'We'll go through everything together and see if anything is relevant. We'll print it out together.' I had a Portland defense attorney say, 'That will take all day.' I said, 'Bingo! You finally get it.' It has tremendously increased the cost of litigation because of all these rabbit trails you have to follow."
In Leach's case, he posted Facebook comments in 2012 about a head injury he received that temporarily sidelined him from sports.
The alleged pull-up bar injury came after, in 2013. The 2012 posts could potentially be used to argue it was the earlier head injury that caused Leach's medical problems.
Andersen says Leach has been completely honest and up-front about the previous injury. After a brief pause from sports, he was able to resume wrestling, football and snowboarding up until the pull-up bar accident in 2013.
The information was disclosed to the defense even before the lawsuit was filed, and Leach discussed it openly during a deposition, Andersen says.
In a statement, the Medford School District says it cannot comment directly on the lawsuit because of legal and privacy issues.
The district did say, "As with all cases of this nature, legal representatives take their time to carefully investigate an incident before potential court appearances. The district places the highest priority on student safety and accident protocols and cares deeply about the health and welfare all students."
The district's lawyer for the case did not respond to a request for comment.
Leach says he has continued to use social media to stay in touch with friends and family.
However, lawyers these days are often asking clients not to post on social media, or to at least refrain from posting anything about their activities or injuries. Some require clients to sign forms agreeing not to post anything that could relate to a case.
"To say to a young person to give up Facebook or Instagram is a pretty tall order for most teenagers," Andersen says.
Don't press delete
Some clients are tempted to delete social media posts, but doing so is the same as destroying documents or other evidence.
In a Virginia case, a lawyer advised a widower to delete a photo that showed him holding a beer and wearing a T-shirt stating he loved "hot moms." The man's wife had died, and he had filed a wrongful death lawsuit.
Because of the deleted photo, a court reduced the widower's $6.2 million wrongful death award to $2.1 million, and the lawyer's license was suspended for five years, according to the American Bar Association.
Other potential consequences of tampering with evidence could include having a case dismissed, having portions of the case dismissed or being held in contempt of court, local lawyers say.
Morse, who practices law with Andersen, says clients should never delete posts.
"That would be very, very bad," she says. "I tell my clients, 'Do not, do not, do not delete anything — even if you think it hurts you.' "
Morse says there are ways to check whether posts have been deleted, so people will get caught.
"If I found out a client did delete posts, that person wouldn't be my client much longer," she says. "I'm not interested in helping make invalid or fraudulent claims."
Morse says she did have a case in which a client deleted posts but she kept the client.
"She had a bad break-up with her boyfriend and was trying to reset. She deleted everything. We worked it out with the defense attorney," Morse says. "There was no intent to hide information. She made an impulsive decision."
When they are deciding whether to take on a case, personal injury lawyers often look through prospective clients' social-media posts for information that could damage a case.
Morse says one man claimed to have a shoulder injury, but her firm discovered a photo of him waterskiing. The firm dropped him before a lawsuit was ever filed.
Lawyers who defend against personal injury claims argue digging into social-media posts helps uncover fraudulent litigation that drives up the cost of insurance and other goods and services for everyone.
Lawyer Bernard Moore says he often requests social-media posts relevant to cases. He defends insurance companies, individuals and other clients who have been sued.
"It's been routinely held by courts that there's no expectation of privacy once you put it out there," says Moore of Medford-based Frohnmayer, Deatherage, Jamieson, Moore, Armosino & McGovern. "People like to talk and put information out there."
"If you posted pictures of yourself doing things you claim you can't do, I'm going to find it. You'll have to explain that if you're telling courts and juries you can't do it," he says.
In one case, a woman who says she was injured in a car accident posted a photo of herself pole dancing, Moore says.
Another woman who claimed back and neck injuries was spotted in a photo standing and balancing on the seat of a moving bicycle, he says.
"It just amazes me what people will post," Moore says.
In addition to finding evidence of people engaged in activities they say they can't do, defense lawyers also discover posts about other accidents that may be contributing to a person's medical problems, he says.
Moore says a man filed a lawsuit saying he'd been injured by an auto, but he had a subsequent motorcycle crash.
"His wife posted a photo of him with a neck brace and road rash in the ER," Moore says.
Honesty the best policy
Lawyer Tom Petersen, who represents injured clients, says most hunts through social-media posts don't reveal that people are faking injuries.
"The good news is, that hardly ever happens. With most clients, whatever they posted supports what they're talking about," he says.
Sometimes those posts do need to be put in context, says Itzik Shlesinger with the firm Shlesinger & deVilleneuve.
"It's a huge risk for parties involved in civil litigation, especially the personal-injury realm, to use social media to stay in touch with friends and family," he says. "It may seem benign and innocuous. But taken out of context, it could seem to reveal something very different. There's an issue for us of putting things in context."
An injured person who can't lift heavy objects might post about helping a friend move, for example, but really only sat on a couch to provide companionship. A social-media post needs to accurately reflect that the injured person didn't take an active role in the move, Shlesinger says.
"Social media gives the defense a treasure trove of potential negative information if taken out of context," he says. "The advice I give is to stay away from social media networking while a case is pending."
Shlesinger says if clients post about feeling happy, that could be used against them. On the other hand, posts could also be used against them if they write about how terrible they feel since being injured.
"An attorney could say, 'You're always complaining, aren't you? You just have that personality — even before your accident,' " Shlesinger says.
Local personal injury lawyers say they warn clients not to fabricate posts exaggerating their injuries.
They say clients don't have to halt all their activities out of fear that pushing forward with life will be used against them. If people continue to jog, for example, lawyers can explain clients have to take pain medication and ice injured areas later.
Despite warnings from their lawyers, some clients can't resist the pull of social media.
"It's very difficult to get people to stay away from social media these days," Shlesinger says. "If you go on sites, be very clear on what you're posting and think how it would be viewed by an insurance defense lawyer."
Petersen offers this blunt advice.
"If you want your private information to be exposed, post. If you don't, don't post," he says. "If you haven't heard, Big Brother is here — and he's very well connected."