972-731-6500SOCIAL MEDIA LEGAL MATTERS
Facebook: I lose sleep over it
Postings on Social Media like Facebook & Twitter are quickly finding their way into the courtroom
Facebook sometimes keeps me up at nights. And not for the reasons you might think. While I admit that I am prone to browse my Facebook newsfeed every couple of days, and even less frequently post a picture or a thought, I wouldn’t classify myself as a Facebook junkie. No, Facebook (and other social media platforms, for that matter) impairs my slumbering at times because I worry about its effect on my clients’ cases. To otherwise bury my head in the sand and not have angst about the material my clients feel the need to post on their Facebook pages would render me negligent in the care of their legal matter. I learned my lesson the hard way. Let me explain by telling you about a case I once handled.
A cautionary tale:
Not too long ago, Jim called me to report that he had suffered a head injury which resulted in significant impairment of his olfactory sense. That is, he claimed that his injury caused him to lose his sense of smell. I won’t go into the cause of his injury, but suffice it to say someone else’s negligence caused it and liability was never a disputed issue in the case. What most certainly was at issue was the measure of his “damages.” After all, how does one quantify (in dollars) what it means to a person when he can no longer smell?
Think about it. For you coffee lovers, what would your mornings be like without the distinctive smell of your java brewing as you get ready for your day? For movie lovers, can you imagine walking into a movie theater and seeing that bubbling cauldron of buttery popcorn spilling into your carton, but not being able to enjoy the aroma as you consume this favorite treat? Granted, I grew up near the stinky refineries of the Houston Ship Channel, so I can recall times as a child when I regretted that my olfactory nerve hadn’t been mortally severed. But even putting aside the future prospect of not being able to smell the good (and the bad) things in life, there’s a safety component too. What if my client was alone in his house and couldn’t smell the fumes promulgated by a burning stove or an attic fire? Its certainly conceivable that one’s sense of smell could be a life-saver in those unfortunate situations.
But hey, I promised you a story related to Facebook. And by now you’re asking yourself what any of this has to do with Facebook. At the time that I filed my client’s case it was not my general practice to snoop their social media pages to discern information which may be helpful or hurtful to their case. It turns out, however, that it was the practice of opposing counsel (or his paralegal) to wander around the social media pages of his adversaries. And for good reason.
Opposing counsel proceeded with taking Jim’s deposition at my office. With his questions, he drilled down on exactly how Jim’s purported total loss of his sense of smell was affecting his quality of life. In painstaking detail, Jim answered his questions. At the time, there was really not a conclusive medical test which could measure one’s ability to smell. After all, the result of such a test would be largely controlled by the subject’s subjective answers to questions. “Can you smell this? How about this? What does this smell like?” Etc.
In any event, at the conclusion of Jim’s deposition, I was as convinced as ever that he had a compelling story to tell to a jury and that he would receive a substantial damage award at trial. Except…. opposing counsel innocuously sent me a subpoena for my client’s Facebook page history/content one afternoon a couple of months before our trial date.
Curious, I called Jim and asked him if he had a Facebook page. Indeed, he did. After only a few minutes of browsing his page, I knew our case was in trouble. You see, Jim had commented on his page about the wonderful smell of the chocolate chip cookies coming out of his oven the night before. As I sit here now, I can still remember the temporary nausea that engulfed me as I read his comment. You can imagine how quickly that case headed south. Sure, he had also suffered a small fracture and had some medical bills that needed to be paid, but his credibility was shot.
There was no trial and only a very small settlement, which was undoubtedly paid only as a professional courtesy to me. What’s the old adage? “Fool me once, shame on you; fool me twice, shame on me.” I’m confident this won’t ever happen to me again. To be sure, if you hire me, I’m going to ask you for passwords to your social media pages. And if you post something on your pages which undermine your credibility (or mine) or could jeopardize your case, I will badger you until you take it down. I might even fire you.
Sleep is important to me.