Social Media: The Modern-Day Litigator’s Secret Weapon

The hearing is underway and the injured worker claims a significant injury after a slip and fall. She complains about her inability to work due to the immense pain in her lower back and left ankle. This is her third workplace injury within the past decade. She claims to remember climbing a step stool before all went dark. The next thing she knew, she was on her back staring at the overhanging lights. She is adamant about her injury and contests her employer’s denial – the case goes to hearing. Defense counsel wheels a television into the room and to the worker’s dismay begins to log into Facebook. He opens her webpage and points to a post from three weeks after her injury, this post reads, “I showed them! This is what my boss gets for not considering me for the promotion. Need more money? Ha. I guess all you need to do is pretend to get hurt.” You can see the fear and disappointment in the claimant’s eyes. Her counsel grabs at the defense attorney’s sleeve and asks for a quick meeting in the hallway. The case settles for pennies on the dollar.

Situations like the above scenario may not be as rare as they seem. Although admissibility of evidence may vary by jurisdiction, the general utilization of technology for legal purposes does not. This article will analyze the increased usage of social media and how these trends influence the workers’ compensation and insurance defense industries. Social media refers to those websites and applications that enable users to create and share content or to participate in social networking. The most influential of these networks is Facebook. By understanding and embracing these advancements, a litigation professional has an additional tool to bolster their case and maximize the probability of a defense verdict. The world is changing rapidly and it is important that attorneys and claims professionals are able to conformwith the times.

Social networking began as a tool for teenagers to connect outside of regular school hours. However, over the past decade, this technology has developed into a normal part of human life being used by all segments of our population. See HERE. In 2016, 78% of Americans had a social media profile, representing a 5% growth compared to the previous year. According to estimates, the number of worldwide social media users reached 1.96 billion and is expected to grow to some 2.5 billion by 2018. See HERE. In fact, as of the second quarter of 2016, Facebook alone had 1.71 billion monthly active users. These are users who have logged onto Facebook at least once within the past 30 days. These worldwide users average over 20 minutes of usage per day. In the U.S., this average is even higher, with Facebook CEO Mark Zuckerberg stating that “users in the U.S. are averaging over 40 minutes of use per day! These users are checking their social media accounts a staggering 17 times per day. Further, the average American has approximately five social media accounts, each of which requires even more time throughout the day.” See HERE. This explosion in social media is creating vast social innovations and changing the American way of life.

In a New York Times article on social media usage, which can be viewed HERE, James Stewart does a fantastic job of putting this usage into perspective.

The average time that users spend on Facebook is nearing an hour. That’s more than any other leisure activity surveyed by the Bureau of Labor Statistics, with the exception of watching television programs and movies (an average per day of 2.8 hours). It’s more time than people spend reading (19 minutes); participating in sports or exercise (17 minutes); or social events (four minutes). It’s almost as much time as people spend eating and drinking (1.07 hours).

The way that we communicate is rapidly changing. This is reflected not only in the “how we say,” but also in the “what we say.” With the expansion of online communication has come an associated increase in freedom of thought and expression. This liberality tends to be reflected in a user’s decision to share many things that they otherwise would have kept to themselves. Users often think that the words stated online will never be used against them in the real world. They believe that there is immunity to criticism and credibility associated with operating in the online world. The detachment and sensed anonymity is largely responsible for users becoming more liberal in what they say. Accordingly, social media accounts can be a key location to find information that may otherwise have been safeguarded in a user’s head. Time and time again these vulnerabilities can be used to create opportunity and profound advantages while defending a personal injury or workers’ compensation case.

The defense industry should embrace this technology and learn to leverage it to create advantages. While handling the defense of any claim, a workers’ compensation professional should immediately conduct a search of all social media platforms. This search should be catered to the unique facts of your case. I refer to the search protocol as the Four “S” Strategies: (1) search; (2) select; (3) save; and (4) serve. Prior to this investigation, you should consult your local rules of evidence to determine what is admissible and what search strategies could be deemed invasive to privacy.

The first step involves a search of the internet for useful material. This search should include all relevant social media sites. A list of sites to consider include, but will not be limited to, Facebook, LinkedIn, Reddit, Twitter, YouTube, Google+, Pinterest, Tumblr, Instagram, Flickr, Vine, Snapchat, and Meetup. Depending on the specifics of your case, it may even be worthwhile to request data from various technological tools like Fitbit, Square, or more obscure applications such as Pokémon Go.

After you have searched for and located all relevant accounts, it is time to select the relevant data. During this selection process, it is important to learn and have knowledge of the intricacies of the platform. Further, it will be important that the search is conducted understanding the legal implications of this data search and protecting the findings for future use. This can become complicated when we move from public to private accounts.

Now that you have searched all relevant social media sites and selected all applicable data, it is time to make a record and save your findings. Due to the inherently fluid nature of social media, many users will delete, move, or alter posts and data at various times in the future. Accordingly, it is important to immediately screenshot, save, or copy all important information. Depending on the level of importance it may be worthwhile to save this information with the necessary timestamp to verify the document. Review your local evidence standards and rules pertaining to the admissibility of evidence prior to deciding what mechanism of saving is best for you.

The final and by far most important step of the Four “S” Strategies is to strategically serve the found evidence. By considering the facts of your unique case and litigation technique a defense professional should determine what to do with the social media evidence. The decision to release information and push settlement or hold until the hearing/trial can make or break your case.

The field of worker’s compensation defense has been long known as an “old boy’s club.” The documents are standard form, the players known, and the defense theories time-tested. Many legal practitioners flock to this field due to the quick pace and ease of handling. However, what seems to be simplicity is often times just an excuse for an attorney’s complacency. A successful litigator should never rely solely on standard forms and dated legal theories. Instead, legal practitioners should be fluid, changing with the times and embracing advances in technology to put forward the strongest defense possible.

If you have any questions regarding this article or workers’ compensation or insurance defense, please contact Ashton Kirsch at [email protected].

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Ashton T. Kirsch
Sr. Associate Attorney

Ashton T. Kirsch is an insurance litigation attorney with the law firm of Matthiesen, Wickert & Lehrer, S.C. Ashton’s practice areas include insurance litigation, subrogation, workers’ compensation, health insurance and ERISA, workers’ compensation defense, and transportation and cargo.