Social media is here to stay and Facebook posts are becoming "red meat" in signficant injury and wrongful death cases-not only in Virginia (VA) but nationwide. What you say or post may be used to (almost) convict you in a court of law. Just look at the Casey Anthony trial if you don’t believe me. But what happens when an attorney asks for pictures and posts off your facebook? Can you legally delete it? What about telling your attorney you don’t have a facebook account when you clearly do? Both of the above situations arose in Charlottesville, Virginia (VA) during a wrongful death case.
The wrongful death case involved a trucking company whose cement mixer truck was exceeding the speed limit on a curvy road. The truck flipped over and landed on top of Jessica and Isaiah Lester’s car-two young people not even 30 years old. Jessica was tragically killed from the truck accident and Isaiah her husband suffered minor injures. Jessica was training to be neurosurgical nurse and had much going for her. This was indeed a tragic accident and this young man was made a widower far too soon. After long fought litigation, her estate was awarded Virginia’s largest wrongful death verdict, $10.6 million dollars for the untimely death of his wife, and he was the significant beneficiary under Virginia law.
The facebook problem came into play during the pre-trial discovery and nearly a year and half after the accident. The truck company’s attorneys asked for copies of certain FB pictures that would have shown Lester in a bad light. According to the trucking company attorneys he had a garter over his head, a tee shirt with a "I love hot mama’s" logo and more. The defense lawyers claim that Lester’s lawyer and/or law firm staff urged Lester to delete the offensive photos but Lester’s attorney allegedly also advised the truck attorneys in writing that Lester did not have a facebook page.
This information was alleged in a new trial request after the trial ended and now the defense is looking for any angle to get a new trial or to get the verdict reduced–and is seeking court sanctions against the law firm. The worst part of the whole matter is that the law firm representing Lester is accused of telling him to delete his FB pictures. The judge may or may not have let the pictures of the widower on FB into evidence, but Lester’s attorney was looking at serious allegations over not disclosing the existence of the FB page and for trying to make possible civil evidence "disappear." There will be no inquiry by the Virginia State Bar–the attorney in question quickly "retired" and handed over his law license to avoid a potentially damaging and embarrassing investigation. Talk about the thrill of victory and the agony of defeat! Or, perhaps "Reversal of Fortune" is an apt phrase.
As experienced Virginia personal injury attorneys we seek to make sure that our clients understand that public disclosures on facebook or any social media site may be discovered by either side. They may even argue that this is admissible evidence. Insurance companies and employers regularly check up on facebook and can use a seemingly innocent picture to hurt your client’s interests. The best practice of course would be to take down the entire facebook page until the case is over-and never post pictures that you would not want shown to a jury, much less your own parents for example. But as that is not an option for all people, you should at the very least have any client initiate all necessary privacy controls and if at all possible ask to have a look at their site from time to time. Friends can be the ones posting the "crazy" pictures after all.
About the Editors: The Shapiro, Cooper, Lewis & Appleton personal injury law firm, which has offices in Virginia (VA) and North Carolina (NC), edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard and Northeast North Carolina Injuryboard as pro bono services.