Yes! Social Media Can Be Used in Court!
Yes, it can. Social media is everywhere. There are some prevalent social media sites and apps such as Facebook, Instagram, Twitter, and even LinkedIn. By the time you read this or might even be three or four new ones that popped up that you may have joined. For our clients, social media can be dangerous. The other side’s insurance company and defense attorneys desperately want your posts if you have been injured or are making a claim. They believe that your posts will contradict your claim or show that you are exaggerating your problems.
There are several right ways and a wrong way to protect against the insurance company and defense attorney searching your social media.
Let us start with what you are NOT allowed to do. NEVER delete anything from social media, including accounts, photographs, or posts. Then they will accuse you of destroying evidence. Do not imitate the plaintiff that “cleaned up” Facebook and was sanctioned $180,000 in Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013), https://scholar.google.com/scholar_case?case=12929440551591006221&q=Allied%09Concrete%09Co.%09v.%09Lester&hl=en&as_sdt=40006.
The Court sanctioned Lester’s attorney because they participated in the destruction. Do not make the same mistake that they did.
But what should I do about social media if I have a case?
There are several steps that you should consider. One is to stop posting. It is that simple. If you do not post, they have nothing.
After that, you can set everything private. Make sure the settings only let people of your choice from seeing your posts and pictures. Adjust your settings so that social media will let you know if somebody tags you. Also, control access to your profile and not allow new friends or followers unless you know them in person.
A follower or friend request could show a picture of that attractive man or woman trying to connect. But it is a private investigator using that profile picture to trick you into allowing them into your social media. This protection is not complete because sometimes investigators can access your profile through friends’ accounts or other tactics.
The next effective way to prevent a problem is to be truthful about your life and damages. Do not deny being able to travel when there are pictures of you traveling. Do not deny being able to play a sport when your profile shows you playing a sport. You get the idea. The problem is that even if you are truthful (which we require), they can still use posts and pictures against you.
We get it. Many people want to maintain their accounts. Even if you do not post regularly and are a lurker to see your friend’s and family’s updates, you still want to keep that connection with others. There’s nothing wrong with that. Where social media can harm your case is when there are pictures of you or posts by you. If you want to maintain your social media, just set everything private as long as you do not destroy or delete anything.
What is social media discoverable?
Under Florida law, social media is discoverable. Often, it is up to the judge to the extent that it is discoverable.
The most crucial Case in Florida is Nucci v. Target Corp., 162 So. 3d 146 (Fla. 4th DCA 2015). https://scholar.google.com/scholar_case?case=12605778203700828790&q=nucci+v+target+corporation&hl=en&as_sdt=40006. That case involves a personal injury claim made against Target. In Nucci, Target wanted to obtain Facebook photographs of her two years before the incident. Target was suspicious because they established that some pictures were missing from the account. The 4th District Court of Appeal upheld the requests that asked for:
- “1. For each social networking account listed in response to the interrogatories, please provide copies or screenshots of all photographs [of the plaintiff] associated with that account during the two (2) years prior to the date of loss.
- For each social networking account listed in the interrogatories, provide copies or screenshots of all photographs [of the plaintiff] associated with that account from the date of loss to present.
- For each cell phone listed in the interrogatories, please provide copies or screenshots of all photographs [of the plaintiff] associated with that account during the two years prior to the date of loss.
- For each cellular phone listed in response to the interrogatories, please provide copies or screenshots of all photographs [of the plaintiff] associated with that account from the date of loss to present.”
We see these requests citing this language all of the time. Our law firm has successfully limited the Defendant from getting other people’s posts, likes, followed pages, and additional irrelevant information. But the risk to your case is there because they can get photographs of you and your posts.
According to the Florida Department of Motor Vehicles (DMV), Florida has close to 400,000 vehicle crashes every year. Florida is a No-
Fault car insurance state. This means that regardless of whoever is at fault in a car accident, you have to seek compensation for your injuries from your personal auto insurance policy first. But there are exceptions.
If your injuries are severe, permanent, or disabling; or the cost of your medical bills exceeds a certain threshold, you may file a liability claim. Whether it is recovering compensation from your insurance provider or the other driver, our civil trial attorneys will review your case and advice you on the best strategy to employ.
How is social media used in Court?
Defendants use social media to attack your credibility and claim for damages. They will blow up a picture of you smiling at a loved one’s wedding. They will take that picture out of context and ask the jury whether that is the face of someone with pain. It does not matter whether you took pain medication. It does not matter that you mustered the courage to smile that one moment even though you were miserable that whole night. They will portray that one moment as “proof” that you are not hurt. Unfortunately, some jurors will ignore your explanation that the picture does not accurately reflect your day-to-day life. Some jurors will believe that a picture is worth a thousand words and not dive deeper into their understanding of what you are going through. Social media can damage your case in another way; We have all had emails, texts, or pictures misinterpreted by other people. Defense attorneys will comb through and twist any photographs or social media posts that you make. It is vital that you take a social media break during your claim to minimize the risk of insurance companies or defense attorneys taking your posts out of context.
Even joking around with a friend on your wall or a sarcastic comment can be misinterpreted. For instance, if a friend posts, “I have not seen you that crazy as you were last night. “You may reply, “Yeah, I know! I partied all night!” If that friend were sarcastic and you were too, because you sat quietly and were not yourself, that would be twisted and used against you. The defense attorney might try to use it to contradict your claims that you are injured, hurt, or lack energy.
If you take away anything from this post, you should not delete any posts or pictures. Also, be truthful about your life. Next, do not upload or post on your social media. If you cannot stop, at least make everything as private as possible. Contact Dyson Law PLLC at 561-903-4542 if you need legal advice about social media or any other legal issue.
If you need Legal Consultation or feel you’re being misrepresented. Call Dyson Law PLLC Today (561) 903-4542
What is a deposition? It is when the other side verbally asks you questions, usually done by their attorney.
Removing to the Federal Court means that your lawsuit transfers from State Court -where your attorney filed your lawsuit- to the Federal District Court for resolution. Because of that removal to the Federal Court, there are different Civil Procedure and Evidence Rules. Some attorneys with a law license for State Court do not have the credentials to practice in the Federal Court.
A court reporter is present at your Deposition and types the questions and answers, creating a transcript.
In Florida, depositions are controlled by Fla.R.Civ.P. 1.310.
Are depositions under oath?
Yes. The court reporter will ask you to raise your right hand and swear you in.
Who attends my Deposition?
Besides you, the Deposition will have your attorney and the attorneys for the other side. Each party (or the attorney representing them) can ask questions. But, if one party brings three attorneys, only one of the attorneys can ask you questions. Sometimes a party will attend with their attorney, but only their attorney can ask the questions. No one is allowed to be disruptive.
Are Depositions video-recorded?
They can be. It is up to the parties to choose to record Depositions. It is allowed explicitly in the Rules.
Where and when will my Deposition be?
If you are a Plaintiff, the other side may depose you in the county where the lawsuit is pending. If you are a Defendant seeking relief from the Plaintiff, the Plaintiff’s attorney may depose you in the county where the lawsuit is pending. Typically, if you are a witness, you will answer questions in the county where you work or reside.
When a Deposition occurs is a little more negotiable. Typically it is during regular business hours. It also depends on who you are. The attorneys typically coordinate a party’s Deposition. If you are an independent witness, the attorneys may or may not coordinate the Deposition with you. If you are out of town, or cannot attend at the time and place chosen by the attorneys, call the attorney who set the Deposition to reschedule. Most of the time, it is not a problem to reschedule the Deposition. There has to be “reasonable notice” for the Deposition. If a party subpoenas you for the next day without coordinating the Deposition with you, a Court will likely say that is not reasonable. Ten days or two weeks’ notice will probably be reasonable.
What topics are off-limits at a Deposition?
The Rule protects you from questions that are designed to “annoy, embarrass, or oppress the deponent.” Some common questioning topics that are off-limits are the attorney-client privilege, work-product privilege, or when you plead the Fifth Amendment. The person asking you questions may ask a judge for a ruling on whether these objections are valid but, if you make those objections correctly, the Judge will not force you to answer the questions.
A Court cannot force you to violate your Fifth Amendment Right. Pisciotti v. Stephens, 940 So. 2d 1217 (Fla. 4th DCA 2006).https://scholar.google.
Invoking the Fifth Amendment does come at a cost. A Jury may draw an adverse inference against you if you plead the Fifth. An adverse inference is that the jury can infer that your answer would be unfavorable under McCreery v. Fernandez, 882 So. 2d 498 (Fla. 4th DCA 2004). https://scholar.google.
One example is if you file a lawsuit against a drunk driver for personal injuries after they hit you with their car. When your attorney asks the driver in their Deposition if they were driving drunk, they will likely plead the Fifth. The jury can infer or determine that the answer would have been yes; they were driving drunk because the driver pled the Fifth.
The next area is attorney-client or work-product privileges. You do not have to answer questions that would violate attorney-client or work product privileges under Fla. R.Civ.P. 1.310 (c). See also Am. Home Assurance Co. v. Vreeland, 973 So. 2d 668 (Fla. 2d DCA 2008) https://scholar.google.
Furthermore, the Rule protects you from questions that are designed to “annoy, embarrass, or oppress the deponent.” Whether a Court forces you to answer is situational. For example, if you are an independent witness who only saw a car crash, they should not ask you how much money you earn. But if you are a party and claiming that you lost income as a result of the crash, your earnings are fair game.
There are some more rules to protect you. If you do not understand a question, ask the attorney to ask the question differently. You can also take a break if you need to use the bathroom, stretch your legs, or are tired.
Finally, you are not required to guess. Sometimes, the truth is that you do not remember or you do not know. Sometimes you are required to know the answers (for instance, as a corporate representative).
How long do Depositions take?
There are no hard and fast limits to this in state court. Federal Court has a limit of 7 hours of testimony (not including breaks). It will take as long as it takes for you to testify on what you know about the lawsuit’s issues. Going back to a car crash, it may take 15 minutes to an hour. Party’s depositions are usually much longer than an independent witness’s testimony. A party’s Deposition may take 3-7 hours or more depending on the complexity of the case.
Are Depositions confidential?
A Deposition or part of a Deposition may be confidential. It depends on the situation and the Deposition topics. The list of areas that may make a Deposition confidential is too long to list here. Still, common ones are your finances, health information, and trade secrets. Your attorney will discuss with you what might be confidential.
Are Depositions part of discovery?
Depositions are a vital part of discovery. Discovery is a broad term that encompasses a lot of different ways your opponent will learn about your case and how you learn about your opponent’s argument. There is more to the story than what documents can show. The hows, whys, and additional facts come to light during Depositions.
The verbal questions may include questions about evidence such as video, pictures, or documents. Those will be marked as Exhibits so that the attorneys know what material their questions address. The Court cannot force you to draw or mark up documents because you only have to answer oral questions. For instance, if you want to draw something to help explain your testimony like drawing an “X” on a picture, you can choose to do that. But, if you do not want to draw or put an “X,” the Court cannot force you to draw under Udkoff v. Hiett by & Through Hiett, 676 So. 2d 522 (Fla. 2d DCA 1996). https://scholar.google.
How are Depositions different in this COVID crisis?
Due to social distancing, there have been changes to Depositions. Instead of all of the parties and attorneys in one room, most appear by video-conference. It might be with Zoom, Skype, or Web-Ex. The court reporter will swear you in over the video-conference.
Are Depositions scary?
You will be nervous while testifying during a Deposition. Most of the fear is being unfamiliar with the process and being afraid to make a mistake. Have your lawyer explain the Deposition process to you, so you are familiar. That should take away the fear of the unknown. Next, telling the truth is the best way to fight the fear that you will make a mistake. Then, there are no mistakes.
Do not worry about mistakes. There are two chances to correct yourself. The first is that your attorney can ask you questions to clarify statements or put things you said in context. Also, you are allowed to ready a copy of the transcript for errors. You can correct yourself by writing the answers on a sheet of paper called an Errata sheet. The other attorney may call you back to answer questions on why you made the changes, but it is better to tell the whole truth. The case allowing a Deposition on the changes is Feltner v. Internationale Nederlanden Bank, N.V., 622 So. 2d 123 (Fla. 4th DCA 1993). https://scholar.google.
What if the other attorney yells, screams, or tries to intimidate you?
Most of the time, attorneys are professional, and this is not an issue. But if the questioning attorney is misbehaving, your attorney may end the Deposition and file a motion with the Court to stop that bad behavior.
Can you be called back to give another deposition?
Florida requires “good cause.” There are a limited number of times where you will be called back for Deposition. First, is that you are unavailable for Trial. Then your testimony may be taken for use at trial, and you will likely be video-recorded. Next is if you fill out the Errata sheet mentioned above, and they can ask you about why you made changes. Finally, if you are a party and there are changes in your life. One example is that if you are suing for personal injuries and you get surgery after your Deposition. You may be called back for a Deposition if your life has changed. But it is limited to the surgery, treatment, and any changes in your life since your last Deposition. The other attorney is not usually permitted to ask you questions that they should have asked during your first Deposition.
If a new party joins the lawsuit, they can take your Deposition because they were not there to ask you questions the first time.
What if the attorney forgot to ask specific questions the first time?
It is not “good cause,” where an attorney admits that there were “areas that [they] should have covered and [they] didn’t. J.S. v. State, 45 So. 3d 910, 911 (Fla. 4th DCA 2010). https://scholar.google.
Parties use Depositions in different ways. If a witness is not available for Trial, then the transcript may be read in or played for the Jury. It may be shown to the Jury by the opposite party during Trial. Finally, the other side will use your Deposition to impeach you or show that you are changing your story. That damages your credibility if you give different answers to the questions.
It is best to treat your Deposition as if you are testifying during Trial because of the potential implications. If you need legal assistance, contact the experienced attorneys at Dyson Law PLLC at 561-903-4542. dysonlaw.com