Social Media and Lawsuits

. . . about Social Media. If you’re involved in a medical malpractice lawsuit, or a personal injury suit, or may ever become a plaintiff, you need to take a moment and read what follows. Because, simply, social media is not the plaintiff’s friend.

You may [think] you know this all ready, you may have been involved in a divorce and your attorney in that matter warned you about posting about your relationship – in any way – on Facebook, or Twitter, or Instagram, or Snapchat (yes Snapchat posts go away on their own, screen saves, however, live forever). Great advice. Now we need to take it a bit further.

Why? Simple: a post that catches you smiling, or mingling with a few friends, or your page shows you received dozens of birthday wishes, or you used a ton of smiley, happy emoticons over the last few months – all of that can now be used against you in a lawsuit. Actually, scratch the ‘can’ and substitute ‘will’ because in 2018 it’s routine for defense teams to check out your social media – before, during, and even after judgement. 

All of the examples above, by the way, have really happened. There’s the woman who worked in a university medical center whose chair collapsed one day causing a severe back injury. She could no longer ‘get around’ and was in severe pain. The company that made the chair – one of the biggies – scrolled through her Facebook page and noticed that she was smiling in her profile picture. On that image alone the defense was about to get the court to grant them total access to “every corner of her private social media presence.”

Here’s the thing. People in pain, people in emotional distress, people grieving, and more do still occasionally smile. They still get Happy Birthdays on Facebook. They still may ‘gut it up’ and go to a family wedding or barbecue or reunion. None of that means they are ‘doing great.’ Yet the Courts are seeing it that way.

Here’s another thing: Facebook is a happy place. The dynamics of the site is overwhelmingly to share positive things (we’re not talking about the comments). Positive shares beget positive responses. No one wants to be a ‘Debbie Downer,’ no matter how lousy they feel while liking friends’ posts.

To quote a recent piece by Slate, “a Facebook user’s emotional performance on social media may be more influenced by the platform’s dynamics than by her own feelings . . . on Facebook, relentless positivity is the dominant affect.”

More from that article:

In a 2012 paper published in the Vanderbilt Journal of Entertainment & Technology Law, Kathryn R. Brown distilled recent research on social media psychology and found that users selectively screen photos to present themselves as “attractive” and “having fun,” and that they tune their personae to come across as “socially desirable,” “group-oriented,” and “smiling.” (But you didn’t need a study to tell you that.) Meanwhile, “individuals are unlikely to capture shameful, regrettable, or lonely moments with a camera . . .” 

. . . people don’t like people who post negative things on Facebook. If people who have experienced trauma aren’t posting sad emoji all the time, it doesn’t necessarily mean that they’re over it; it might just mean that they’re savvy. 

I can and do tell clients to be careful – very careful – on social media. I realize, as I do, that it’s a Quixotic task. ‘Be careful’ on a stage designed to elicit smiles and good wishes is hardly strong enough.

But how do I ask that of someone who may rely on the relationships on social media for support – especially house bound clients? I can’t, really, of course. Though I should. At least until the courts start to catch up to the psychology of social media and recognize that a smile isn’t always a smile.