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Social media evidence may be used to refute personal injury claim

By Kirsten McMahon, Associate Editor

Personal injury plaintiffs may want to err on the side of caution when it comes to posting to their social media accounts, Easy Legal Finance Inc. president and CEO Larry Herscu tells AdvocateDaily.com.

“It’s best to avoid social media entirely or at least use extreme caution if you are involved in a personal injury claim,” he says. “If you are seeking damages and expenses for rehabilitation but your social media posts contradict your injuries, that information could be used to refute your claim.”

Easy Legal Finance Inc. offers financial support to people who have been hurt in an accident to help them pay bills while their lawyer fights for a fair settlement.

The National Post reports a B.C. Supreme Court judge largely rejected a woman’s claim for hundreds of thousands of dollars in damages, citing problems with her credibility. The defence put forward evidence, including 194 pages from the plaintiff’s Facebook account, which showed her in social settings participating in activities the judge found were “completely inconsistent” with someone suffering from psychological trauma.

In a recent Ontario Court of Justice decision, the defendant sought an order requiring the plaintiff to produce her Facebook account activity, including profile posts and comments from five years prior to the accident to present.

The defendant submitted that because the plaintiff’s public Facebook profile contains “information relevant to her social, volunteer, family, and enjoyment of life activities, the public posts are relevant and therefore the private posts and comments are relevant too,” the decision states.

The judge concluded there was no evidence that the posts were relevant to the case because the activities depicted didn't address the extent of the plaintiff's physical limitations since the accident.

While the outcomes were different, Herscu says both of these matters illustrate that social media evidence is playing an increasingly important role in litigation and insurance companies and defence counsel will try and use this information to discredit plaintiffs’ claims.

A 2017 Robert Half Legal survey showed 37 per cent of Canadian lawyers said they’ve seen an increase in lawsuits and discovery materials linked to images or information found on social media and mobile devices. Additionally, trawling a plaintiff’s social media accounts is more cost-effective than hiring a personal investigator to detect fraudulent claims, making it an attractive option for defendants.

The Post says this trend raises a provocative question — “Can people’s social media posts be a reliable barometer of how they’re actually feeling, especially when they tend to present themselves online in only the sunniest dispositions?”

While people may curate their social media accounts to portray their lives in a positive light, Herscu says someone with a personal injury claim should think “long and hard” before posting.

“If the majority of what you’re posting on social media doesn’t reconcile with your claims of injury or suffering, it becomes much more difficult to prove your case,” he says. “The less information out there, the better.”

Herscu says if plaintiffs wish to continue using social media while a claim is ongoing, they should do so carefully.

“Check your security settings — and check them again,” he advises. “Don’t accept friend requests from people you don’t know and untag yourself from photos.”

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