Did you ever wonder where the expression, “to read the Riot Act” comes from? Well, if not, you are probably wondering now. So here’s the explanation: The so called “Riot Act” was an Act of the Parliament of Great Britain when the USA was still part of Great Britain (1715). It authorized the government to declare any assembled group of twelve or more people unlawful, and force them to disperse. Before the group could be arrested or punished for illegal assembly, the authorities had to read aloud the Act as a warning to disburse. The phrase “to read the Riot Act” thus came to mean more generally any situation where an authority delivers a stern reprimand or warning to someone indicating that they must change their behavior or else suffer dire consequences.
A recent Court of Appeals (New York’s top court) Decision has New York personal injury lawyers “reading the Riot Act” to their clients. Before I can tell you why the “Riot Act” is being read to New York personal injury claimants, I have to first explain the Court’s ruling.
In Forman v. Henkin the Court held that, when you sue someone for personal injuries, their lawyers can get access not only to your “public” Facebook posts, but also – under certain circumstances — to the ones you posted under your “privacy” settings. Those private postings do not automatically need to be disclosed to the insurance company lawyer, but those lawyers – whose goal is to defeat your claim — can force you to turn them over by showing they are reasonably likely to be relevant to the credibility of your injury claims.
Why does this new ruling make New York personal injury lawyers want to “read the Riot Act” to their clients? I’m getting there. Don’t you just love the suspense? First, some background.
Many of my injured clients who suffer permanent, significant disabilities and pain from their accident, choose to put a positive spin on their situation with their acquaintances, friends and even family. Rather than post Facebook photos and statements concentrating on their pain, their inability to do the things they loved to do, rather than post “oh-woe-is-me” pictures and posts, they prefer to paint a rosier picture of their life. They don’t want to bring their friends down. They don’t want to invite pity. They are proud people.
The problem with those kinds of innocent, positive-spin posts is that insurance companies and their lawyers use them to try to torpedo your case. Those glass-is-half-full photos and posts give the insurance adjusters and lawyers an argument to present to a jury that goes like this:
Ladies and gentlemen of the jury, look at this photo (insurance lawyer here blows up on a big screen a Facebook post of you with a wide, happy grin). Plaintiff posted this photo only one month after the accident. Does this look like a guy with a 7 out of 10 pain level, as plaintiff is claiming here in Court? Of course not! That’s because he’s faking!
This kind of argument can be made even with relatively innocent photos and posts. Even though you might be forcing the smile through a level 7 out of 10 pain level, the photo shows only the smile, not the pain, and when presented to a jury, could convince some that the pain is feigned.
Before this new top Court ruling, many New York personal injury lawyers assumed that their clients had to be careful only with regards to public posts on their Facebook pages. They assumed the insurance company and their lawyers could get access only to public postings, not posts under the private settings on Facebook. (p.s., we at Michaels & Smolak were not among those lawyers! I have been posing on this blog for years that injury victims need to be careful about what they post even within their privacy settings).
In this recent case, the Court has made it clear that even private postings are game for “disclosure” to the insurance defense if there is an indication they could be relevant to the credibility of a plaintiff’s injury claims.
While the case involved only Facebook posts, injured claimants and their lawyers need to understand that the same logic applies to all social media postings, including Facebook messaging, Instagram, Snap Chat, and potentially even to texts and emails and other forms of communication you send to friends and acquaintances which you believe (falsely) to be private. All of these means of communication are potentially “discoverable” by the insurance companies and their lawyers.
So here is the “Riot Act” New York personal injury lawyers need to read to their clients:
IN THIS BRAVE NEW WORLD OF SOCIAL MEDIA, PRIVACY NO LONGER EXISTS. ASSUME THAT ANYTHING YOU POST OR TEXT OR EMAIL TO FRIENDS AND FAMILY IS GOING STRAIGHT TO THE INSURANCE COMPANY. AND DO NOT EXPECT A JURY TO NECESSARILY BELIEVE YOU WERE PUTTING ON A HAPPY FACE TO DISCOURAGE PITY AND TO REASSURE YOUR FRIENDS YOU WERE “ALRIGHT” DESPITE YOUR ACCIDENT.