Social Media and Your Injury Claim: What Adjusters Are Looking For

Published January 6, 2015 · Injury Law Basics

A few days after a crash on I-675, a client of ours posted a photo from her niece's birthday party. She was smiling, holding a slice of cake, and standing on her own two feet. Two months later, the other driver's insurance company sent us that photo and asked why someone with a "serious back injury" looked so comfortable at a party. She had been in pain the entire time. She left after twenty minutes. None of that showed up in the picture.

That is the problem with social media in an injury case. A photo captures a second, not a life, and the people reviewing your claim are paid to read it in the least favorable way possible.

Who is looking, and why

When you make an injury claim, the insurance adjuster's job is to pay as little as the company can defend. One of the cheapest investigative tools available in 2015 is a search of your name on Facebook, Twitter, and Instagram. Adjusters do it. Defense lawyers do it. Some insurers hire outside investigators to do it on a schedule, saving screenshots over weeks and months.

They are looking for anything that can be framed as inconsistent with your claim:

• Photos of you doing physical things: lifting a child, carrying groceries, bowling, yard work, a vacation.
• Check-ins at gyms, bars, concerts, or sporting events.
• Posts about the crash itself, especially anything that sounds like you are accepting part of the blame or describing how you felt in the first hours.
• Posts about work, including a new job, a side business, or overtime, if you are claiming lost wages.
• Comments from friends ("Glad you're feeling better!") and your replies.
• Anything that looks like anger at the other driver or the insurance company, which they will use to paint you as motivated by revenge rather than injury.

Context does not travel with a screenshot. The adjuster does not see that you spent the next two days in bed after the party. The jury, if the case gets that far, sees a woman holding cake.

Can they really get your private posts?

Many people assume that tightening privacy settings solves the problem. It helps, but it is not a wall. Once you file a lawsuit, the other side can ask for your social media content in discovery, which is the formal process where each side must turn over relevant information. Ohio courts decide these requests case by case, and a judge who sees a public photo that appears inconsistent with your claim is more likely to order you to produce the rest.

Even before a lawsuit, "private" content leaks. Friends of friends can see things. A mutual acquaintance shares a post. An investigator sends a friend request from a fake profile with an attractive picture, and a surprising number of people accept. Treat everything you post as if the adjuster will eventually read it, because there is a fair chance that is true.

The deletion trap

The instinct, once you understand all this, is to go back and delete everything. Do not do that without talking to your lawyer first.

Ohio recognizes a duty to preserve evidence once a claim is reasonably anticipated. Deleting posts, photos, or an entire account after a claim begins can be characterized as destroying evidence. At best it looks like you had something to hide. At worst, a court can instruct the jury that it may assume the deleted material would have hurt your case. A photo of you at a birthday party is explainable. A deleted account is not.

The right approach is to stop adding to the problem, not to erase the past. Tell your lawyer what is already out there, including anything embarrassing, so we can deal with it on our terms.

Practical rules from the day of the crash forward

Here is what we tell every new client, and what I wish people knew before they ever called a lawyer:

Stop posting about the crash. Not the photos of the damage, not the story of what happened, not the update from the emergency room. The one exception is the evidence you gathered at the scene, which belongs with your lawyer, not on your timeline. I covered what to capture in Photographs and Evidence: What to Capture at a Crash Scene.

Stop posting about your activities. If you must keep an account active for family or work, keep it to things that have nothing to do with your body: recipes, articles, your kids' school play. Assume every photo of you will be seen by someone who wants to minimize your injury.

Ask family and friends not to tag you. Your settings do not control what your brother-in-law posts. Ask the people close to you to leave you out of photos and check-ins until the case is over.

Tighten privacy settings, and do not accept new friend requests. Set every account to the most restrictive setting available. Decline requests from anyone you do not personally know, no matter how friendly the profile looks.

Do not message anyone about your claim. Direct messages, group chats, and comments are all discoverable. Conversations about your case belong with your lawyer, where they are privileged.

Be consistent everywhere. The same honesty I urged in Why Honesty With Your Doctor Can Make or Break an Ohio Injury Case applies online. If you tell your doctor you cannot sit for more than thirty minutes, and then post from a three-hour concert, the problem is not the post. The problem is the inconsistency, and a jury will notice it.

Why this matters more in serious-injury cases

In a minor claim, a bad photo costs a few thousand dollars. In a case involving a permanent injury, a surgery, or a lost career, the stakes are different. These cases are won on credibility. The jury has to believe that your pain is real, that your limitations are real, and that you are not exaggerating. The defense does not need to prove you are lying. It only needs to plant doubt, and a single misleading image can do that.

Insurers know this. It is the same reason they push for a quick recorded statement before you have a lawyer: they want your words, captured early and out of context, to use against you later. Social media gives them that for free, every day, in your own voice.

What this means for you

If you have been seriously hurt in a crash or a fall in the Dayton area, the safest course is simple: go quiet online, do not delete anything, and tell your lawyer what is already posted. We would rather know about the birthday-party photo in week one than hear about it from the defense in a deposition. Our personal injury practice is built around preparing cases as if they will be tried, and that preparation starts with knowing everything the other side will know.