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Attorney Advice to Car Accident Victims: Control Your Facebook, Twitter, Blogging …

November 19, 2009 by Steven M. Gursten

As a car accident attorney, I always tell my clients that playing around on Facebook, MySpace, Twitter or other similar social networking sites can have dire consequences for an auto accident case.

For example, insurance adjusters and defense attorneys will investigate your accounts, Web pages and blogs — even when set as ‘Private’ — and look for things that can help them avoid taking full responsibility for the harms they have caused. The purpose of this Internet research is to attempt to show that you are not as injured as you claim.

Watching this happen to my own clients spurred me to compile a list of 17 common mistakes made by well-meaning auto accident victims. These mistakes unfortunately play a crucial role in hurting good people with legitimate cases. Read here to prevent innocent mistakes your insurance company and defense lawyer may one day try to use against you.

I’ve included an interesting (and disturbing) example of a government lawyer’s Facebook “friend request” to the plaintiff client of one of my personal injury attorney friends. This was obviously improper, but serves as a relevant example of how lawyers are using Facebook and other social networking sites to initiate improper and unethical communication with a party represented by an attorney. The excerpt below was forwarded to me as part of a motion request to have the government attorney disqualified.

Acceptance of a friend request would broadcast to both the sender’s and the recipient’s universes of friends the announcement that “sender and recipient are now friends.” In addition, the friendship request opened up sender’s personal profile and other friends to recipient. Since the sender has only 17 friends, ranging from personal friends to her enlisted assistant, it appears she considers her Facebook intimate and is surely discerning about those she invites to be her “friend.”

Moreover, courts all over the country have held that the mere “friend request” initiated by sender on a private social networking site constitutes a contact and communication; in State v. Fernino (Stapleton Criminal Court, NY 2008), where a MySpace friend request constituted a communication in violation of a restraining order even though the recipient had a choice to accept or reject it, the court likened the friend request to a telephone call from the initiator asking, “I would like to communicate with you. Are you interested?” Had sender called recipient and prefaced such a question to a conversation, the mere contact itself would suffice to disqualify her from these proceedings. In the United Kingdom, Dillon Osborn was even jailed in 2007 because his Facebook “friend request” constituted an unwanted communication.

Recipient’s Facebook settings are set to “Private.” Thus, only those who have “friended” recipient, as sender attempted to do using her first name and last name but not her rank, can view his personal profile, stored personal communications with other “friends,” photographs, postings, etc. In Pietrylo v. Hillstone Restaurant Group, (2008 WL 6085437 D.N.J.), the U.S. District Court refused to dismiss claims against an employer asserting that efforts to view private social networking pages on MySpace — in an attempt to terminate an employee — constituted tortious invasion of privacy and violations of the federal Stored Communications Act (18 U.S.C. ?? 2701-11); a jury subsequently held the employer liable under the aforementioned and other counts and the District Court denied post-trial motions to dismiss.

Furthermore, in a Ninth Circuit case with strikingly similar facts, the court also denied defendant’s motion for summary judgment where plaintiff-employee alleged that the employer had gained unauthorized access to his private online bulletin postings under false pretenses. (Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 880 (9th Cir. 2002).

Here and similarly, either sender attempted to violate 18 U.S.C. ?? 2701-11 and tortiously invade recipient’s privacy in the course of a proceeding to terminate his employment with the Marine Corps by way of administrative separation, or she inappropriately contacted him socially. If she was hoping recipient would not yet be aware of her identity as recorder in the case, and inadvertently granted her access so she could investigate the recipient and his social interactions, then sender would have done so under false pretenses and violated the federal Wiretap Act, Stored Communications Act, and committed a common law tort of invasion of privacy. If she thought recipient knew – or could figure out – who she was, then an attempt by a recorder to engage the target of separation proceedings in a social interaction is an inappropriate communication in the clearest of forms.

In either instance, her continued presence as Recorder on this case is clearly impermissible.

Objection to Unethical Communication With Plaintiff Via Social Networking

A reasonable delay also is justified so that the government can appoint a new recorder to this case. On Tuesday, 25 August 2009, Capt X contacted Sgt Y via an online social networking site, Facebook. She attempted to “friend” Sgt Y, which, had he accepted her friend request, would have allowed her to access his profile, photographs, communications with other “friends,” and other information.

Rules of Professional Conduct prohibit such contact. Specifically, JAGINST 5803.1C of 9 November 2004 states:


In representing a client, a covered attorney shall not communicate about the subject of the representation with a party the covered attorney knows to be represented by another attorney in the matter, unless the covered attorney has the consent of the other attorney or is authorized by law to do so.

Most states have rules of professional conduct that contain the same prohibition. Capt X had no legitimate reason to contact Sgt Y in this or any other manner without going through his detailed counsel. Her conduct creates an appearance of impropriety which is insurmountable, and I respectfully request that the Commanding General appoint a new recorder to this case.

How to Protect Your Auto Accident Case in Michigan

With the above in mind, the lawyers of Michigan Auto Law encourage car accident and truck accident victims to use extreme caution with social networking sites. Remember, people whose job it is to hurt your case or mitigate your damages will be watching.

Please avoid or exercise the utmost care in posting:

o Photographs or videos of yourself (defense lawyers can say older photos reflect your current activity);
o Personal feelings about the person who caused your injuries;
o Status updates about your lawsuit or future plans after your case;
o Any personal information about you, your family or your lifestyle.

Insurance companies will start monitoring and copying your social networking accounts almost immediately after an accident occurs.

Steven M. Gursten is recognized as one of the nation’s top experts in serious car and truck accident injury cases and automobile insurance no-fault litigation. Steve has received the largest reported jury verdict for an automobile accident case in Michigan in four of the past seven years, including 2008, according to Michigan Lawyers Weekly.

Related information:

Dealing With Your Auto Insurance Company

Getting the Right Medical Care and Documenting Injuries in Michigan

Personal Injury Lawyers Must Use Caution with Social Networking

Auto Accident Attorney Blogs: Top Lawsuit Mistakes

Michigan Auto Law is the largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights to better serve you. Call (248) 353-7575 for a free consultation with an auto accident attorney.

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