A picture is worth 1000 words – especially in injury cases

We've previously discussed how injury clients need to be cautious when posting to social media. A Florida appeals court recently showed why this is important. In Nucci v. Target Corp., the Florida Court of Appeals ruled that an injury plaintiff had to disclose over 1200 photos on her Facebook page, even though her privacy settings were set to "Friends Only".

The court rejected the argument that the "Friends Only" setting created a reasonable expectation of privacy in the photos. Target had an investigator perform surveillance on the plaintiff, and took pictures of her "carrying heavy bags, jugs of water, and doing other physical acts, suggesting that her claim of serious personal injury is suspect." The court pointed to this evidence in ruling that the photos must be turned over. The court stated:

“If a photograph is worth a thousand words, there is no better portrayal of what an individual’s life was like than those photographs the individual has chosen to share through social media before the occurrence of an accident causing injury. Such photographs are the equivalent of a “day in the life” slide show produced by the plaintiff before the existence of any motive to manipulate reality. The photographs sought here are thus powerfully relevant to the damage issues in the lawsuit. The relevance of the photographs is enhanced, because the postaccident surveillance videos of Nucci suggest that her injury claims are suspect and that she may not be an accurate reporter of her pre-accident life or of the quality of her life since then. ”

People involved in a lawsuit should pay attention to this case for a couple of reasons:

• Social media accounts are, by definition, designed to share personal information. So, that information isn't private.
• In lawsuits, corporations and insurance companies will go to great lengths to try and prove someone is a liar. Even if a plaintiff tried an activity she formerly enjoyed just one time and had problems afterwards, defense lawyers will use a photo of the activity to try and prove the plaintiff is faking.
• Context for posts is important. People usually want to present their best outward appearance to friends on social media.

This last part is crucially important. Just like in real life, most folks don't run on and on about the bad parts of their lives on social media — otherwise they would be defriended or blocked. It can be explained like this (warning: mild language):

“So the next time you’re driven to jealousy by a Facebook friend’s humblebragging about his or her awesome life, don’t forget: They’re probably embellishing it for social media, even if it’s unconsciously.

Ultimately, Facebook is a narcissistic playground where the best, the funniest, the most charming aspects of our lives are publicized and the s*&%y stuff, the boring stuff, the beige that is most of our daily grind almost never gets posted. All those walls are edited at some level and that makes them, at best, a deformed mirror image of real life or, at worst, nothing more than a fictional movie of how we want people to see us.”

If people involved in lawsuits post stuff on Facebook, defense lawyers will present small snapshots of a person's life and represent those as the average of a person's life, rather than the "best of" snapshots they really are.

We advise clients to limit posts to social media to avoid these problems during insurance claims and lawsuits.

Picasso vs. patents: Good artists copy, but can great artists steal?

Steve Jobs, Apple's late CEO, loved the Picasso quote: "Good artists copy, but great artists steal." According to Jobs' biography, the famous Apple computer of the early 1980's that came with a mouse and graphics used technology that was actually developed by Xerox. Yet, Jobs became furious when Microsoft quickly adopted the same interface.

New design elements can be patented. For instance, the "pull-to-refresh" gesture was originally developed for an app named Tweetie, a client for the social media application Twitter. It took so long to get the patent, however, that virtually everyone adopted the gesture in other apps. The inventor claims he obtained the patent "for defensive purposes only", which means that he patented the concept not to sue others, but to ensure that someone else couldn't patent the idea and make him stop using it.

It takes the U.S. Patent Office over two years, on average, to examine a patent application after it is filed. Many applicants take advantage of a "provisional" application process that further extends the time out to 3+ years. Think about the user interface for mobile devices and social media sites from three years ago. They'd seem awfully clunky now, wouldn't they?  

Patents are one way to keep others from stealing your ideas down the road, once you've invested time and money in developing a product, but it takes a concentrated effort to keep up with advances in technology. It takes but a simple glance at the business section of the newspaper to see the patent litigation wars between Apple, Samsung, and Google — these tech giants are duking it out using huge patent portfolios. Oftentimes, these cases result in settlements where the parties cross-license patents to one another to the benefit of all concerned.

So, good artists may copy. But whether they can steal depends on how many patents they have, how soon they were issued, and how much the technology has developed (and moved on) between the time the application was filed and when it issued. (Don't forget that when someone gets caught stealing, they usually have to pay restitution — and some patent damages awards are in the billions of dollars!)

Because patents can take so long to develop, I typically recommend that my clients try to envision where their business will be in 5-8 years. If you have a unique product or service, try to figure out what changes and improvements you'd like to make over time, and include those in the patent application. Later patent applications (called continuations) can further develop more general ideas into concrete, patentable inventions that freeze out competitors.

Please let us know if we can help with your patent needs. 

Social Media & Privacy - Dos and Don'ts

Visit bizarrocomics.com for more!Many folks (especially the young ones) have social media accounts these days, such as Facebook, Twitter, Google+, and the like. Grandmas use them to look at pictures of grandkids, college students use them to stay up on their friends, and many of us get our news from them. 

While social media is, by nature, a way to share your interests with others, it is a good idea to protect yourself online. Here are some tips to help get you there:

DO make sure your privacy settings are set to "Friends Only". Without this, anyone can see and use your personal information without your knowledge.

DON'T accept friend requests from people you don't know. Fake accounts can be used to access and download your personal information.

DO consider how a post will look to others before you post it. Others may not understand inside jokes or context unless you provide it.

DON'T overshare. You have a First Amendment right to privacy, but it can be given away.

As lawyers, we have seen a growth in requests for information from social media websites by insurance companies and the defense lawyers they hire. Unless information is guarded, insurance companies can access material on social media websites and have used it against people making claims.

Sometimes the information gets taken out of context. For instance, in one case a young woman was hurt in a car wreck. Her favorite thing to do in the summertime before the wreck was tubing on the lake. She tried it once or twice after her wreck, but it aggravated her symptoms and she didn't do it any more after that. Sure enough, the insurance company found a picture online from the one time she went tubing after her wreck and tried to use it against her, even after the proper context was explained to them.

What you say or post can affect your claim, and some judges have ordered litigants to turn over information on social media sites even where the highest privacy settings were selected. So, especially for people involved in court cases, it is important to be selective about what you post.