Social media is here to stay, and Facebook posts are becoming red meat in signficant injury and wrongful death cases — not only in Virginia (VA) but nationwide. What you say or post may be used to (almost) convict you in a court of law. Just look at the Casey Anthony trial if you don’t believe me.
But what happens when an attorney asks for pictures and posts off your Facebook page? Can you legally delete those? What about telling your attorney you don’t have a Facebook account when you clearly do? Both of those situations arose in Charlottesville, Virginia (VA) during a wrongful death case.
The wrongful death lawsuit involved a trucking company whose cement mixer was exceeding the speed limit on a curvy road. The truck flipped over and landed on top of Jessica and Isaiah Lester’s car — two young people not even 30 years old. Jessica was killed by injuries she suffered in the truck accident, and Isaiah, her husband, had minor injures. Jessica was training to be neurosurgical nurse and had much going for her. This was indeed a tragic accident, and the young man was made a widower far too soon. After long-fought litigation, Jessica Lester’s estate was awarded Virginia’s largest wrongful death verdict, $10.6 million dollars, for her untimely death, and Isaiah was the significant beneficiary under Virginia law.
The Facebook problem came into play during pretrial discovery and nearly a year and half after the accident. The truck company’s attorneys asked for copies of certain FB pictures that would have shown Isaiah Lester in a bad light. According to the trucking company attorneys, he had a garter over his head, a T-shirt with an "I Love Hot Mamas" logo, and more. The defense lawyers claimed that Lester’s lawyer and/or law firm staff urged Lester to delete the offensive photos, but Lester’s attorney allegedly also advised the truck attorneys in writing that Lester did not have a Facebook page.
This information was alleged in a new trial request after the original trial ended. Now, the defense is looking for any angle to get a new trial or to get the verdict reduced and is seeking court sanctions against the law firm whose attorney represented Lester. The worst part of the whole matter is that Lester’s law firm is accused of telling him to delete his FB pictures. The original trial judge may or may not have let the pictures of the widower on FB into evidence, but Lester’s attorney was looking at serious allegations over not disclosing the existence of the FB page and for trying to make possible civil evidence "disappear." There will be no inquiry by the Virginia State Bar; the attorney in questioned quickly "retired" and handed over his law license to avoid a potentially damaging and embarrassing investigation.
Talk about the thrill of victory and the agony of defeat! Or, perhaps, "Reversal of Fortune" is an apt phrase.
As experienced Virginia personal injury attorneys, my colleagues and I seek to make sure that our clients understand that public disclosures on Facebook, or any social media site, may be discovered by either side. They may even argue that this is admissible evidence. Insurance companies and employers regularly check up on Facebook and can use a seemingly innocent picture to hurt your client’s interests. The best practice, of course, would be to take down the entire Facebook page until the case is over and to never post pictures that you would not want shown to a jury — much less your own parents — in the first place. But as that is not an option for all people, you should at the very least have any client initiate all necessary privacy controls and, if at all possible, ask to have a look at the client’s site from time to time. Friends can be the ones posting the "crazy" pictures, after all.