I will always remember the time when a client entered our office with his head held high because he believed he had a strong lawsuit. Then, opposing counsel presented his Facebook page. On display there, as everyone could see, were pictures of him water skiing only a few days after he had told everyone that a back injury had incapacitated him. The case was lost in a few minutes.
This experience taught me an important lesson throughout my time in the legal field: your social media posts can significantly impact your court case more effectively than nearly anything else.
Your Posts Become Evidence (Whether You Like It or Not)
This is something most individuals do not realize: whatever you post on the internet may be used in court. And I mean anything.
The social media posts are considered in the courts as any other evidence. Through a phenomenon known as discovery, lawyers can ask to see your Facebook photos, Instagram stories, Twitter threads, and even deleted posts. I have witnessed judges request individuals to provide their login details to allow rival attorneys to scroll through all of it.
Think about that for a second. The furious rave you put up at 2 AM? The photo from last weekend? Your little innocent joke? It all might be printed out and presented before a judge or a jury.
The worst part? Individuals continue posting without considering. I once saw a case of personal injury in which the plaintiff alleged that she was unable to leave her house because she experienced severe anxiety. Her attorney found out that she had been posting where she was at restaurants and concerts all along Facebook. We are referring to dozens of public posts that were in conflict with what she testified to under oath.
The Mistakes People Make (And How They Backfire)
Posting About Your Case
You may believe that crying about your suit is a way to relieve stress. It doesn’t. It creates problems.
I was assigned to a custody case in which one of the parents wrote: “I am looking forward to the time when this nightmare is over, and I will take the kids to California”. That was the only post that the lawyer of the other parent used to claim she intended to break the custody agreements. One sentence. Months of damage.
Even seemingly innocent updates bring problems. It is easy to say “you had a great day in court” or the “judge seemed just,” but this may work against you in the future when you wish to appeal.
The Privacy Setting Myth
They say to me all the time: But my account is private!
It does not matter that much as you suppose.
First, not all of your friends may be friends. Mutual connections are known to be used by opposing parties to access personal profiles. I have witnessed that people have accepted friend requests from people they have never met and discovered that they are related to the other person.
Second, even courts can compel you to disclose personal posts. There was a divorce case that I observed, where a woman had to give screenshots of private messages that she had sent, in which she had complained about the way her husband was bringing up the children. Those grievances were used as proof that she was attempting to ruin his contact with their children.
Deleting Posts After Legal Trouble Starts
This is the big one. Deleting posts on social media when you realize a legal case exists is not only stupid. It’s potentially illegal.
This is known as “spoliation of evidence” in courts. It is destroying evidence that can favor the opposing party. I have heard of judges finding individuals who deleted posts. In one of these cases, the judge instructed the jury that they should have assumed that the deleted posts would have worked against the person. The assumption was all that changed the verdict.
You can always delete something, but it is not always gone. The content can be deleted by lawyers on the platform itself. Facebook is a long-term data holder. Instagram, Twitter, and the majority of other sites do as well.
Real Cases That Went Wrong
The Workers’ Compensation Disaster
One man said that he had injured his shoulder at work and could not move anything greater than a cup of coffee. His Instagram was discovered by the insurance company lawyer. He had recorded videos of himself working out in the gym, doing pull-ups, and bench pressing. His workers’ comp board refused his entire claim. Instead, he received nothing and was at risk of being charged with fraud.
The Custody Battle That Backfired
In one case, a mother was struggling to get full custody because she argued that her ex was an unfit parent. She made dozens of Facebook posts that referred to him as a deadbeat and a loser. Her attorney later informed me that the posts portrayed her as vindictive and unstable. The judge provided the father with increased time in custody, in part due to her social media actions.
The Discrimination Case That Collapsed
She was sued by an employee on the grounds of disability discrimination. She claimed that her illness did not allow her to travel. She checked in on Twitter in five countries within six months. The case was won by the company, and she was required to pay their legal fees
What Courts Actually Look For
Attorneys look through social media to find certain things:
Contradictions to your claims. When you claim to be hurt and upload pictures of you playing sports, that is a problem. When you say you have hard financial times yet display costly items, it is an issue.
Your character and credibility. Pictures of you lying, being violent, taking drugs, and even threatening everyone are all negative to your cause. Even old posts can be found from even years ago.
Hidden assets in divorce or bankruptcy. People share about new cars they have bought, vacations they have taken, and large purchases. Then they inform the court that they are penniless. This is always discovered by lawyers.
Violations of court orders. I have heard of people writing about their interaction with a person with whom they had a restraining order. I have witnessed parents put pictures that breached custody agreements regarding the posting of kids on the internet.
How to Protect Yourself
Stop Posting About Your Case
Just stop. Do not share court dates, attorneys, the opposing party, or anything to do with your court case. Nothing good comes from it.
It involves subtweeting, using vaguebooking, or dropping coded messages that you hope to have only your friends will decipher. Lawyers aren’t stupid. They figure it out.
Think Before You Post Anything
Ask yourself: “Would I be comfortable with a judge looking at this?” In case the answer is not yes, then do not post it.
The same applies to photos that are captured by other people of you. Ask friends not to tag you. Look into what you have been tagged in. Untag yourself from anything that can be considered bad.
Don’t Delete Old Posts Once Legal Action Starts
Stop deleting things in case a lawsuit is filed or you are aware of an impending legal action. Talk to your lawyer first. They’ll tell you what to do.
Until you begin any legal trouble? You will be able to tidy up your social media. This is done by a large number of people. But just don’t do it when you are on notice of a legal issue.
Adjust Your Privacy Settings (But Don’t Rely on Them)
Keep your accounts as secret as possible. Take your location off the posts. Never accept friends with whom you are not well acquainted.
However, keep in mind that privacy settings do not make the posts undetectable by the courts. They simply provide a minor barrier of protection.
Tell Friends and Family
Your aunt who shares pictures of all the family meetings? Your friend who labels everybody in the group photos? They can cause issues in your case.
Inform those significant to you that you are going through a legal case. Request them not to post with you or about you until things are sorted out.
What About Completely Deactivating Your Accounts?
I get asked this constantly. The answer is complicated.
Switching off social media in the course of a case is, in fact, suspicious. The opposing lawyers may claim that you have something to hide. It is, at times, seen in a negative light in the courts.
However, with some of the cases, particularly in criminal cases or major custody battles, your lawyer may recommend that you go dark temporarily. It will depend on what is happening to you.
You should not make such a decision without consulting your lawyer.
The Emotional Side Nobody Talks About
t is a stressful experience to go through a lawsuit. Social media is a space to release, to find a voice. I get it.
But here is what I have learned by watching clients who are fighting: that it is not worth having this temporary relief of posting your feelings at the cost of your case.
One of the clients informed me that she wrote angry comments about her ex-husband as she felt helpless. The court interpreted such posts and ruled that she was hostile to the extent that she could not co-parent. She did not get the custody arrangement she desired. The temporary gratification of posting cost her years with her children.
Find other outlets. Talk to a therapist. Call a friend. Write in a private journal. Belong to the real-life support group. Do not publicize your plight on the internet.
Questions People Ask Me
“Can they really force me to give them my passwords?”
Yes. Courts have the power to force you to give access to your accounts. Failing which, you might be sanctioned or contempt of court. I’ve seen it happen.
“What if someone else posted it, not me?”
What other people may post about you may still serve against you. You may not be in control of everything, but you can request that people remove them. You can unfix posts that may bring you trouble.
“My account got hacked. Can I say that?”
Do not pretend that you have been hacked when you have not. The truth can be generally checked by the courts. Lies turn you into a disingenuous person and damage your reputation on all other matters.
“What about posts from before the incident?”
Old posts can still matter. I have witnessed lawyers digging back years of social media history of someone. There is no expiration date for character evidence.
Moving Forward
Social media has now become a common thing. The majority of us cannot imagine that we can give it up entirely. You probably don’t need to.
Yet when you are in any legal issue, you must be more careful about what you post. Consider all the things you put on as something that you may need to prove in court. Because you might.
The cases I have viewed fail due to social media; all shared one commonality: the individual did not believe that it would make a difference. They believed that their posts were innocent, or confidential, or too ancient to keep count of.
They were wrong.
It can be seen on your social media. Treat it that way. Those few minutes you take to think before posting would save you.
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