Guide to Utilizing Social Media Websites in Investigating Claims

By: Daniel P. Costello, Esq. & Jessica Biagi, Esq.

Why use social media websites to investigate claims? You would not believe what people are putting on the internet these days! A recently widowed husband claiming loss of consortium posts a picture of himself at a beach with barely dressed women wrapped around his waist. A claimant who broke his ankle tweets that he has fully recovered and cannot wait to run another marathon. A plaintiff's witness posts the day after the alleged incident that she is severely hungover and does not remember much about what happened the night before.

Social media can provide invaluable information when evaluating a claim, preparing a defense, or preparing for trial. For example, defense counsel can use a Facebook photograph or Twitter post you found on a social media website to rebut a claim for damages or impeach a plaintiff's credibility at trial. Nevertheless, in using social media to investigate claims, you need to be careful to avoid crossing the line and putting your defense counsel in an awkward ethical position.

How to keep things ethical

If the information is public, it is fair game. However, if a person's profile is set to private, certain ethical problems can arise. Attorneys are not allowed to use deceptive investigatory tactics or engage in prohibited communications, whether through their acts or the acts of another. This means that if you create a false profile or friend a represented claimant, the attorney can get in trouble and the information itself can be thrown out. While several jurisdictions allow attorneys to friend unrepresented individuals under certain circumstances, the safe bet is to alert defense counsel to the profile and allow them to make a formal discovery request.

How to make it count

Once you find the “smoking gun,” what do you do with it? To make it count, you need to properly collect the social media-based evidence so that defense counsel can circumstantially lay the foundation at trial. Make sure to preserve enough information about the website to establish that it belongs to the subject claimant/witness. Record the site's URL, how you found it, the date and time you viewed it, and any other identifying details (ie, username, stated location, communications with other witnesses). Using the “snipping tool” on your computer, take various snapshots of both the post and the profile in general. A judge will consider all the particular details in combination.

How to avoid surprises on this end

What goes around, comes around. Make sure to look up your clients and alert defense counsel to any potential issues with their social media websites. If no formal discovery request has been made in the case, it may be permissible to remove the adverse content.

What a Way to End a Year, 2012 Ends in a Bang

As another year draws to a close the internet is a buzz with stories of the top ten movies of the year, this year's best gifts, and the stories of the year. We have been doing quite a bit of reflecting here again, and we wanted to share some of the highlights of 2012 with our friends and clients.

Although typical lists try and recap the entire year, we won't try and do so here. It just happened in December but we would be remiss if we didn't start with an excellent trial result. On December 10, 2012 a Cook County jury found in favor of our client, a national retailer, in a high stakes jury trial. The plaintiff asked the jury for $9.5 million dollars where he had nearly $1 million in paid past medical bills, $2.1 million in wage loss and a claimed $6 million in non-economic damages. The plaintiff would not move off a $5.4 million pre-trial demand, and turned down a joint defense offer of $2 million dollars, with indications for additional settlement. The jury found for our client, and assessed 0% liability. This was a major victory as joint and several liability in Illinois would require payment of medical for any verdict including 1% on liability. The trial team of Dan Costello, James Barrow, and Jessica Biagi tried the case for nearly two weeks, ending in a verdict followed by the Illinois Trial Lawyer's association. In addition to success in the Courtroom the firm has spent a great deal of time developing and studying industry best practice.

In September 2012, Dan Costello presented on the Ethics of Alternative fees to global risk managers and insurance executives in Philadelphia. He presented on a panel with former Associate General Counsel for Harleysville Insurance, along with the former Chief Legal Counsel for the Pennsylvania Department of Insurance. Shortly after presenting, Dan was part of the second Litigation Management Institute at Columbia Law School in October 2012. The intensive program provided by CLM is a one of kind program putting experienced litigation attorneys, risk management officers, and corporate leaders through rigorous course work for three days. Leaders from Google, Marriott, Liberty Mutual, and other Fortune 100 companies guided the attendees through best practice in litigation management and service to clients. Dan is one of 170 people in the U.S. to have completed the course, and he earned the CLMP designation.

Finally, the firm prides itself on the work that it is doing with two national insurance carriers in regards to litigation management. 2012 saw the firm work successfully with two major U.S. based carriers to create counsel scorecards, litigation management best practices, and unique solutions. These solutions will create value long into 2013 and into the future. Although a successful 2012 is over, there are many exciting events planned for next year, and we look forward to celebrating them with our friends and clients.

Daniel P. Costello specializes in construction litigation, complex litigation, and litigation management.