The social networking site Facebook will turn 17 years-old next month. In that time, social media has become ubiquitous in our society. The dangers and potential pitfalls of social media platforms such as Facebook, Twitter, and Instagram are widely discussed and generally recognized; and yet the conversation regarding objectionable content tends to be specific and trends towards the extreme.
Against this backdrop, Penn State recently published an article in Science Daily, unsurprisingly suggesting that social media content matters for job candidates. According to researchers, job recruiters now incorporate social media searches into the background work prior to interviews. Citing a report by CareerBuilder.com, studies revealed that 60% of employers eliminated candidates on the basis of ‘negative’ social media content.
Interestingly, the definition of “negative content” discussed in the article was far less specific than one might imagine. The research found that “self-absorption” reflected in postings negatively impacted employers’ perceptions of potential candidates. Casual references to, or photos of alcohol use, raised concerns about overall fitness for employment.
The social media postings referenced in support of these conclusions were neither specific nor egregious. Instead, the takeaway from the article is that the totality of a person’s social media portfolio creates an impression on which others will render judgment. A negative overall impression may have unintended and potentially far-reaching consequences.
At Allen & Allen, we have a longstanding policy of addressing social media usage with our clients. It is part of our intake process. We explain that social media posts can be requested by the defense in discovery or obtained by subpoena regardless of an individual’s privacy settings. We discuss the fact that posting about the collision, a person’s injuries or their subsequent recovery may impact the ultimate resolution of their case. We talk about the pitfalls that specific posts might have in the context of personal injury litigation. Perhaps it is time to widen the scope of that discussion.
I know that defense attorneys and insurance adjusters are looking at my clients’ social media accounts. In the course of my career, I have seen social media posts used in depositions and on cross-examination at trial.
Thankfully I have prepared for these confrontations, and the specific posts used by the defense have not stood in meaningful contradiction to my clients’ claims. We were prepared to address the specific posts that we anticipated the defense may try to use against us. Now, I think it may be time to think about social media’s influence in much more general terms.
At the start of the personal injury process, a claim consists of an often-large volume of paperwork. There is a police crash report, photographs of the involved vehicles, bills and medical records. We collect and compile this paperwork and submit it, en masse, to the assigned insurance adjuster.
Then, they review these documents in the context of other similarly-situated claims that they have valued over the course of their career. At the end of their review they come up with, and ultimately present, an offer of settlement. Importantly, through the entirety of that initial claims process, the insurance adjuster (who is determining settlement value and setting a reserve on the claim) has never met or spoken to my client.
As I know that adjusters and defense attorneys are pulling social media profiles for use in the litigation context, it stands to reason that this same information may be pulled early on to personalize the largely anonymous paperwork submitted at the beginning of the claims process. If a claimant’s social media profile presents a negative overall impression on the adjuster, that could support an adjuster’s belief that the claimant will present poorly at trial and, in turn, reduce the amount of any proposed settlement.
I regularly explain to my clients that one of the most significant value drivers in a personal injury case is when the defense sees them as honest and likeable. To this point, we have this conversation after initial settlement discussions fail, when suit has been filed and in preparation for deposition or trial.
Going forward, I think that conversation needs to happen at the intake appointment and in conjunction with a discussion of the dangers of social media in general. You only get one chance to make a first impression. It’s important to make sure that it’s a good one.