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In Litigation, Your Online Self Can Hurt Your IRL (that’s “In Real Life”) Self

Published January 11th, 2019 by Kai Jacobs

Who are you, really?  Until the early 2000s, that was an existential question.  But, with the advent of social media and its explosive world take over (Facebook has more than 2.27 billion with a “b” active users as of late 2018 and Instagram passed the 1 billion user mark in June last year) (source statista.com), the question has morphed from trying to understand our internal desires, observations, and thoughts into an outward examination of the person we are IRL (that’s “in real life” in social media shorthand) and the one we create for those who see or follow us online.

We pose for pictures, we check in at places, we show off our newest purchases, and we have, as a result, created a trail of breadcrumbs showing anyone who follows us not where we have been or who we are, but where we want people to believe we have been and who we want people to think we are.  Social media posts are edited, stylized versions of ourselves and our lives.  Some are our best selves, some are our worst, and others are outright fabrications. They are vignettes meant to convey the best, the worst, the most poignant, or most “whatever it is that you want or need everyone else to know about.”  They do not convey the whole picture because….well, they aren’t supposed to.

Some of our site profiles are public and open, some we believe are restricted.  Lawsuits, however, are open and public and part of litigation involves making clients appear believable and sympathetic.  While justice is blind, people are not and people administer justice, whether they be lawyers, juries, witnesses, or judges.  So, it may not come as a surprise to you that the legal industry has caught on to the fact that the person or company your lawyers say you are may not be the same person you portray yourself to be on social media and that there is great profit in taking advantage of this disparity.

If you are in or contemplating litigation, it is recommended that you survey all of your social media platforms to make sure that what you have written, posted, or photographed yourself doing is not inconsistent with your litigation position.

Few things are harder to bear than a person’s own undoing.  Imagine being involved in a lawsuit to have your father declared legally incompetent because your court papers say you worry for his safety and well-being.  Imagine showing up in court and having your father’s lawyer show the judge pictures of you throwing a party at your father’s house after you had him involuntarily committed to a hospital because you claimed it was for his own good.  Imagine, further, that these photos were taken on a date and time you claimed you were visiting your father.  This happened in a case I was involved in and we were able to prevail, in part, because someone had the presence of mind to search around the social media sites to verify times and dates of events.  Because of this one case, social media maintenance has become part of all of my client engagements.

The point is: you need to be vigilant and careful with what you put online.  In litigation, that information is subject to discovery by your opponents.  The fact that your profile is “private,” does not matter.  The fact that you think it has nothing to do with the dispute also does not matter. Who you say you are, where you have been, and when you were there can be decidedly important to the outcome of cases.  People other than you (lawyers and judges) will decide what part of your social media self ends up being part of a lawsuit.  You don’t want that, believe me.

Even if it would never come into evidence in a case, appearances matter.  Recently, an opponent claimed he could not afford to pay a judgment and my client should, therefore, give up.  A little social media searching showed my client’s opponent living a lifestyle entirely inconsistent with his claim and, I am not making this up, included a Facebook post showing this person buying a new car the very same week he was claiming he could not pay my client.  While these posts might not be evidence, it hurt the opponent’s bargaining position and he ended up paying considerably more to settle the case than I think he ever believed he would.

In the end, you need to make sure nothing you put out to the world can be misconstrued or misunderstood as somehow being something other than consistent with any of your legal positions or intentions. 

If you have questions about this or would like more information, feel free to reach us at 305-768-9846 or kj@kaijacobs.com.


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