Ches Crosbie Barristers

Auto Accidents and Car Wrecks

5/18/2010
Chesley F. Crosbie, Q.C.
Comments (0)

The new surveillance: What video surveillance and social networking sites have in common

Insurance companies like to hire private investigators to take live video surveillance of injury claimants just before, or just after, they have testified at oral discovery about how badly they've been injured and all the things they can't do. Most video surveillance is inconclusive and boring, but it can create problems. It can capture an injured person chopping wood in the backyard, but it can't capture how badly that person "pays for it" when he gets back inside the house.

Perhaps more dangerous to accident victims are the social networking sites such as MySpace or Facebook. Be very careful about your presence on these sites. Be wary about posting photographs that could be viewed as inconsistent with claims of physical limitation. Before you post something or say something, think about how it might look when you are confronted by it later at discovery or at trial. Insurance companies can get access to everything on your networking site. Tell the truth - but think before you act and be on guard.

I have warned about the dangers of social media before. Halifax injury lawyer John McKiggan has put out an alert about facebook being used against personal injury victims as well. This warning can't be given too often!

Labels: Facebook personal injury claims social media video surveillance

General

4/30/2009
Darlene P. Russell, B.Sc. , LL.B.
Comments (0)

Warning for Injury Clients About Social Media

We want to give you some warnings about social media. We are now seeing the insurance companies hunting social media sites such as Facebook and mining those sites for photos/blogs about what the clients are doing while they are claiming to be injured. Courts have ordered clients to produce their sites to the other side.

Consider a recent Newfoundland and Labrador case. The insurance company used publicly accessible parts of a Facebook site to destroy a personal injury plaintiff’s case in Terry v. Mullowney, 2009 NLTD 56 (CanLII). The judge stated that “without this evidence, I would have been left with a very different impression of Mr. Terry’s social life,” and “I draw an adverse inference against Mr. Terry based on the inconsistencies between his social life as depicted on this Facebook site and his claims about his limitations.” You can read more of what the judge said at the end of this warning.

Here is what my friend, personal injury lawyer Brenda Hollingsworth is telling her clients at her website:

FACT-> While initially people were quite guarded about what photos they posted online and who has access to them, people are gradually becoming more exhibitionist. Your friends may have photos of you, that can be searched by your name, on their pages. In other words, your own privacy settings cannot protect you entirely.

FACT-> The courts have ordered injured plaintiffs to produce their Facebook pages to the insurance company lawyers.

FACT-> Evidence from Facebook has been admitted in court and is used by the police and the traditional media.

FACT-> Every insurance defence lawyer who is looking for injured plaintiffs’ pages, profiles and pictures on Facebook.

So, does this mean you have to withdraw from the 21^st century and avoid social media? As your lawyer, I would like to say, well, yes, avoid it like the plague. However, as a human being, I recognize that may not be possible. So, what steps can you take to protect yourself?

Step One: Take a critical eye to your social media sites to see if there is anything you would not want the insurance company lawyer to see. Remember that the insurance company will not know the context of your photos or comments. They won’t know if you swallowed a bottle of pain killers to get through that party.

Step Two: Check your privacy settings. Most sites allow you to block certain people altogether from seeing that you even are on the site. Block the opposing lawyer and his/her clerk. Keep in mind, however, that there will be law students and others whose names you won’t know, so this is not foolproof.

Step Three: Search your name in the search field to see what comes up and make sure it is acceptable.

Step Four: While you are at it, do the same thing on Google and YouTube. Make whatever adjustments are necessary.

Step Five: Don’t accept friend requests or answer emails through social media from people you do not know. On Facebook, if you send a message, you grant the receiver access to your profile for a certain number of days. That is a common device to get access to your profile. Keep in mind that because of the lawsuit process, the opposing legal team knows a lot about you and could send you an email that might make you think you know each other.

If you are in doubt about whether or not your pages are acceptable, speak to your personal injury lawyer about it.

Here’s exactly what the judge said in the Newfoundland and Labrador case of Terry v. Mullowney:

[102] Mr. Terry claimed that his social life had been severely curtailed by the effects of the motor vehicle accidents. He said he was no longer able to play pool with his friends and he essentially had little or no social life, except the occasional weekend outing.

[103] Counsel for the defendants confronted Mr. Terry on cross-examination with printout excerpts from the internet social interaction website known as Facebook on which Mr. Terry had an account. This website allows people to exchange personal information about their activities, lifestyle and interests, including photographs and contact information. Mr. Terry’s account was accessible by any member of the public.

[104] While not getting into the details of these excerpts, they convince me that Mr. Terry (at least in the few months just prior to his testimony in Court recorded on Facebook) had a rather full and active social life. He went to and hosted parties, attended weekend outings at summer cabins, drank alcohol frequently, smoked marijuana daily and appeared to have a number of friends with whom he communicated and socialized on a regular basis. I find it incredible that Mr. Terry’s social life miraculously improved in the few months he was communicating on Facebook and that for the remainder of the time from 2001 to 2007 he essentially had no or little social life.

[105] Without this evidence, I would have been left with a very different impression of Mr. Terry’s social life. He admitted as much in cross-examination. After he was confronted with this information which is publicly accessible, he shut down his Facebook account saying he did it because he didn’t want “any incriminating information” in Court. I draw an adverse inference against Mr. Terry on account of this statement and conclude that the Facebook account which he shut down and some particular messages which he deleted prior to shutting down the account entirely contained information which would have damaged his claim.

Labels: adverse evidence personal injury social media

St Louis Bankruptcy Blog

What Is An Attorney Only Chapter 13 Bankruptcy Payment Plan?

Date: 09/03/2010

Missouri Injury Blog

Everything You Need To Know About Motorcycle Helmets

Date: 09/03/2010

Personal Injury Attorney News

What Car Accidents are Costing You

Date: 09/03/2010

Personal Injury Attorney News Portal

Pedestrian Injured in Bus Accident

Date: 09/03/2010

Pedestrian Injured in Bus Accident is a post from: Personal Injury Attorney News Portal

Personal Injury Lawyer News

Fullerton Car Accident Injures Three

Date: 09/03/2010

Fullerton Car Accident Injures Three is a post from: Personal Injury Lawyers News

Personal Injury Lawyer Report

Pedestrian Injured in San Diego Car Accident

Date: 09/03/2010

Pedestrian Injured in San Diego Car Accident is a post from: Personal Injury Lawyer Report

Personal Injury Lawyer Journal

San Diego Hit-And-Run Collision Injures Pedestrian

Date: 09/03/2010

San Diego Hit-And-Run Collision Injures Pedestrian is a post from: Personal Injury Lawyer Journal

Personal Injury Questions and Answers

Woman Injured in San Diego Hit-and-Run Car Accident

Date: 09/03/2010

California Injury Blog

Motorcycle Accident Causes Major Injuries

Date: 09/04/2010

motorcyclist

A motorcyclist sustained serious personal injuries after an accident on the 5 Freeway in Mission Viejo caused by a pallet dropped on the roadway. According to a news report in The Orange County Register, the motorcyclist was northbound on the freeway near Oso Parkway on August 27, 2010, when he struck the debris and crashed. He has been hospitalized with major injuries. California Highway Patrol officials are investigating this incident.

I sympathize with this motorcyclist, who has apparently suffered severe injuries because of someone else's negligence. I pray he recovers quickly and completely from his injuries.

Virginia Wrongful Death Blog

video answers most frequently asked question

Date: 09/03/2010

Frequently Asked Questions - Virginia Accident Cases

California Personal Injury Blog

Pasadena Hit-and-Run Crash Injures Elderly Pedestrian

Date: 09/03/2010

Pasadena Hit-and-Run Crash Injures Elderly Pedestrian is a post from: BestAttorney.com - BISNAR | CHASE California Personal Injury Lawyers

Halifax Personal Injury Blog

Traumatic Brain Injury a "Disease" not an "Event"

Date: 09/02/2010

Traumatic Brain Injury Claims

New research published in this months issue of the Journal of Neurotrauma advocates treating traumatic brain injury as a chronic disease process, rather than an isolated event.

As a brain injury lawyer, I wholeheartedly agree with the conclusions reached in the article.

Brain Injury the Beginning of a Process

The authors of the study, Brent E. Masel and Douglas S. DeWitt from the Univesity of Texas Department of Neurology state that:

The purpose of this article is to encourage the classification of traumatic brain injury (TBI) as the beginning of a chronic disease process, rather than an event or final outcome. Head trauma is the beginning of an ongoing, perhaps lifelong, process that impacts multiple organ systems and may be disease causative and accelerative.

The authors review how a brain injury is often the start of a degenerative process that may cause further injury, even death, months or years after the initial trauma. The conclusions reached by the authors no doubt will be supported by brain injury survivors, their family's and those that advocate for survivors.

Chronic traumatic brain injury disease should be reimbursed and managed on a par with all other chronic diseases. Only then will the individuals with this condition get the medical surveillance, support, and treatment they so richly deserve. Only then will brain-injury research receive the funding it requires. Only then will we be able to truly talk about a cure.

Virginia Car Accident Lawyer Blog

video answers most frequently asked question

Date: 09/03/2010

Frequently Asked Questions - Virginia Accident Cases

Halifax Sexual Abuse Claims Blog

Priest Sexual Abuse Class Action Filed in Montreal

Date: 09/02/2010

A new class action has been filed in Quebec alleging sexual abuse by priests.

The class action names the Community of the Clerics of St. Viateur in Montreal and the Raymond-Dewar Institute (also known as the Institute for the Deaf and Dumb) as defendants.

The representative plaintiff, Serge D’arcy says he was a victim of sexual abuse by priests while attending the institute between 1967 and 1972. D'arcy states that he was subjected to physical and sexual abuse by priests who were members of the religious group who taught and worked at the Dewar Institute.

I applaud Mr. D'arcy's courage in coming forward on behalf of himself and other victims.

I am pleased to see that class action legislation is being used as a tool to help more victims of childhood abuse. I had the pleasure of being invited to present on this issue at The Canadian Institute's 9th Annual summit on Institutional Liability for Sexual Assault & Abuse.

Ron Martin's sexual abuse class action against the Roman Catholic Diocese of Antigonish was a groundbreaking claim. The landmark settlement achieved in that class action will provide accountability, closure, and fair compensation to victims who would never be able to speak publicly about what happened to them.

Halifax Medical Malpractice Blog

Doctor Sues to Silence Patient

Date: 07/28/2010

I read blog post today by my colleague Catherine Bertram, a medical malpractice lawyer in Washington D.C. that I thought was interesting.

Dr. Sues Her Patient

She has posted about a California physician, Dr. Kimberley Henry, who has sued one of her own patients who posted a negative review about Dr. Henry online. I wonder if Dr. Henry is opposed to online rating websites generally or just the ones that say bad things about her? Keep in mind that Dr. Henry has signed up for some of these webites and posted her profile.

Gag Orders

Last year I posted about a similar issue Doctors Forcing Patients to Sign Gag Orders .

Catherine's post indicates that some doctors are becoming more aggressive about trying to prevent patients from exercising their right to freedom of expression.

Coming to Canada?

I'm not aware of any similar suits here in Canada, but the online doctor rating sites like Rate MD are a great resource for Canadians. Is it only a matter of time before we start to see doctors suing their own patients?

What do you think? Let me know by posting a comment.

Free Book

7 Deadly Sins That Could Wreck Your Injury Claim

Why Most Medical Malpractice Victims Never Recover a Dime

The Shocking Truth about Wrongful Death

See More Books

Free Consultation

Please complete this short form and a representative of the firm will contact you to discuss it in more detail.

Ches Crosbie Barristers
169 Water Street
St. John's, NL
A1C 1B1
Phone: (709) 579-4000
Fax: (709) 579-9671
Toll Free: (888) 579-3262

Get Directions

A Soft Tissue Injury is One of the Most Common Personal Injuries

Medical Malpractice:

The Difficulty of Medical Negligence Cases

I am here because:

Auto Accidents and Car Wrecks

General

Free Book

Free Consultation