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.