INSIGHTS: So you still think that FaceBook is for teens and just a bit ‘low brow’?

November 25, 2015

.. you could be letting your clients down

Posted by Julie Somerville, Principal, Meridian Lawyers

Its no secret that I am reasonably active on social media; I have been a believer in its potential for connecting colleagues and clients for some time; but – much to the amusement of some of my colleagues – I think I am quite adept at using it for research. Some may call it stalking, I prefer to think of it as throughly investigating all aspects of a claim!

While I have found it most beneficial in personal injury claims, it has proved beneficial in a few professional indemnity claims and property damage claims recently. A few practical examples (with a few alterations for confidentiality reasons):

  • Plaintiff asserted she had permanent hip problems which prevented her working full time. A FaceBook search led me to a blog created by an dance group to which the Plaintiff belonged. Shortly before trial the blog posted photos of an overseas dance competition – including photos of the Plaintiff performing a winning routine.
  • Plaintiff company alleged advice provided by accountant caused the business to suffer loss and ultimately lead to its demise. The usual financial records and accounts did not provide an obvious alternative hypothesis for the cause of the company’s losses. But something didn’t seem quite right. Again, a FaceBook search of one of the directors had the director “checking in” at a different accountant several suburbs away. A subpoena issued on that accountant proved most fruitful.
  • Plaintiff suffered certain physical injuries which she alleged caused her to become reclusive and depressed. Her expert evidence, as is the case in all psychological injury claims, was based entirely on her self reported symptoms. Her FaceBook account had reasonable privacy settings, however it was still possible to see the other pages she liked. A review of those pages lead to the discovery of a fundraising event she had participated in. The fundraising page suggested that the Plaintiff had battled a certain illness that had not been referred to in the litigation. This one was a win win – either the illness the Plaintiff “battled with” was the cause of her depression or she had not been truthful in the reporting of her condition to her doctors thereby losing all credibility.
  • A very high end luxury car was destroyed in a fire. A dispute arose as to whether the car was insured at market value or fixed value. Website and FaceBook searches of the car dealer revealed it had been on the market for sometime. The valuation provided in support of the claim could not be substantiated.

In each of these examples the quantum of the claim was significantly reduced as a result of this information. While in some cases further subpoenas and affidavits may be needed to make the results of social media searches admissible, the vast majority of cases are resolved well before trial and the material can be very helpful in settlement negotiations or for guiding further questions to be asked of experts and further avenues of enquiry.

Several of my clients now expect social media searches to be undertaken, and even if they don’t – I do them anyway. My general view is that such searches are most productive when performed:

  • by the person actually running the case – often an outsourced investigator will not have sufficient information to appreciate the nuances of the claim to known when to pursue a line of enquiry. Also, sometimes later in the litigation evidence will be served which will be inconsistent with what you have viewed  on social media earlier which opens up a further area for cross examination;
  • as soon as you receive the claim – and make sure you print out all relevant information. Even the fact that certain posts are deleted as the case progresses may be relevant;
  • in some depth, that is don’t simply limit your view to page one of the Google results, or just the persons own posts, look at their interests, delve into groups or pages they follow, look at where they ‘check in’;
  • on a few occasions throughout the life of the claim.

There are several reported cases available now where information obtained via social media has been referred to and has influenced the outcome of the case. If a post on those cases is of interest just mention it in the comments and I will write a post about some of those cases.

However I hope this has caused you to pause and think that, just perhaps, the value of social media is something you should not discount entirely.

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