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The Small Firm Difference – A Freudian Slip of the Tongue That Tells the Truth

We are often asked why a client should hire a small firm where clients speak directly with their attorney rather than a larger firm, with a large staff, large overhead, and levels of bureaucracy?

When it comes to heavily advertised areas of law such as workers’ compensation and personal injury, there may be another enormous difference: many of the larger firms have to feed their seemingly endless advertising budgets and pay for their TV ads and billboards. As a result, their business model (that’s what they call it) requires them to “move” files (in other words, settle cases) rather than fight every case as much as possible — even if that means going to trial, filing an appeal, or merely waiting to settle the case until the best tactical moment. After all, trials, appeals and waiting all take time, don’t generate fees, and don’t pay the advertising agencies’ bills.

Recently, one large advertising law firm included a page on its website in which it said that they “aren’t afraid to back down from any opponent.” That’s right, they are not afraid to back down from an opponent. Well, they are telling the truth. If they fought every case the way they should, it could mean a trial or an appeal, or waiting months until it’s the best time to settle. That’s why they aren’t afraid to back down.

Our office doesn’t have an advertising agency, we don’t have billboards, and we don’t run TV ads. We’re small, allowing us to provide client-focused representation that does what’s right for our clients, even if it means waiting months to settle a case to assure our client receives the maximum settlement.

We aren’t afraid to fight, and we don’t back down.

Insurance companies and defense attorneys know that we go as far as needed for our clients. They know this, and they know that they will have to either fight us, or pay top dollar to settle our clients’ case.

Some firms aren’t afraid to back down.

We aren’t afraid to fight long and hard if we have to. We don’t need to feed the advertising machine. That’s our small firm difference.

 

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Authenticating Social Media Evidence Is Harder Than Lawyers Think

Let’s play a game. You’re the judge. Under the following facts, is the social media evidence admissible?

After obtaining a Court Order allowing him to obtain a criminal defendant’s Facebook records, the prosecutor files a motion seeking permission to introduce into evidence the following items:

  1. Screenshots of the defendant’s Facebook account
  2. Various undated mobile and online “chat” messages
  3. A bloody hands photo posted by another individual

So, which items were admissible? Not which items should have been admissible?

The answer: None.

Why? Even social media obtained pursuant to a court order must be authenticated properly to be admitted into evidence. In other words, the prosecutor failed to establish sufficiently that the items were “connected” to the defendant even though the Facebook account in question bore the defendant’s name and other characteristics. The chat messages were excluded because they contained insufficient contextual clues establishing the defendant’s identity as the author to allow them in as evidence.

Pennsylvania Evidentiary Standards for Authenticating Electronic Data

The Superior Court, in Commonwealth v. Mangel, 2018 PA Super 57 (Pa. Super. Mar. 15, 2018), ruled that social media evidence authentication requires, at a minimum:

  1. An adequate foundational showing of its relevance and authenticity, and
  2. Direct or circumstantial evidence that tends to corroborate the identity of the author of the communication, such as testimony, or contextual clues in the communication tending to reveal the identity of the sender.
  3. The admissibility is to be evaluated on a case-by-case basis for an “adequate foundational showing of its relevance and authenticity.”

Direct Evidence such as electronic communications or documents require more than mere confirmation that the number or address belonged to a particular person to be authenticated and used in court.

Circumstantial evidence may include personal knowledge of participants, and verification to authenticate computerized instant messages, cell phone text messages, Facebook posts, and other contextual clues that tend to corroborate the identity of the sender to verify authorship.

So, was Mr. Mangel lucky that his Facebook chats were not admitted? Yes. But, why? Because the Commonwealth did not do its research and obtain corroborating data to authenticate the messages. In fact, no one testified about the veracity of the messages; thus, they were unverifiable.

Of note, as our office has explained to many clients, as well as lawyers attending continuing legal education programs where we speak, social media records and communications can be properly authenticated within the existing evidentiary rules. To authenticate social media chat messages or emails, the proponent (person offering the evidence) must present sufficient direct and circumstantial evidence to establish its authenticity, that the matter is what it purports to be, and/or testimony of a witness with personal knowledge. See Pennsylvania Rule of Evidence 901.

Plaintiffs Must Be Careful Using Social Media When Pursuing Injury Claims

According to recent surveys, two-thirds of all American adults use Facebook, with the majority using it on a daily basis. Social media platforms are ever-growing and changing, with 78% of people under the age of 24 now using Snapchat, and 71% using Instagram. Using these platforms to make statements or post photos has become second-nature for many, and you might not realize the risks of using social media if you are in the midst of a legal battle. If you are pursuing a legal claim, especially for personal injuries, workers’ compensation, or other claims involving physical and emotional injuries, you must be cautious when using social media. Any information that you post may be seen and requested by the other side, and even information you believe is private can be discoverable.

Recently, a Monroe County Court of Common Pleas Judge granted a defendant’s motion to compel discovery, including access to the plaintiff’s Instagram account, in a personal injury lawsuit. In that case, defense counsel offered publicly viewable posts from the plaintiff’s account that seemed to show physical activity inconsistent with her alleged injuries. The facts of that case are particularly interesting because while the plaintiff’s account was publicly viewable at the time of the offered posts, she had since changed her account to private. The Judge determined that full access to the account, which plaintiff had previously denied existed, was relevant to verifying the extent of her injuries and rehabilitation.

If you are in litigation or considering pursuing a claim for injuries, you should refrain from communicating about your case or disclosing anything on the internet or social media. While you do not need to stop using social media or the internet altogether, you must be very careful about what information, videos, photographs, and so on that you post online. Like the example above, photographs and other posts can be used by the other side to argue that your injuries have not prevented you from certain activities. In addition, embarrassing or profane materials could be used to try to attack your character.

We regularly represent injured persons, and we always advise our clients of the implications of social media use when pursuing claims for workers’ compensation or personal injury matters. If you have been injured in an auto accident, slip and fall, work-related, or other accident, call our office at 610-446-3457 to set up a consultation with our attorneys. We can guide you through the process, and advise you about what you should expect and consider when pursuing your claim.

 

Don’t let your claim turn into a pumpkin because you should have called a lawyer

The decision to file a lawsuit can be tricky. Generally, a person may only file a lawsuit within a limited time period, known as the statute of limitations. If you wait until the last minute, your claim might change from a lawsuit into a pumpkin on its way to the courthouse.

For the following personal injury claims, the statute of limitations is two years: Negligence, Toxic Tort, Wrongful Death, Medical Malpractice, Products Liability, and Fraud. See 42 Pa. C. S. § 5524. This time limit begins to run on the date the injury occurred.

A lawyer can help you determine whether an exception applies. Exceptions have applied when an injury is not discovered until much later or could not be discovered until more than two years after the act that caused the harm. But in most cases, the statute of limitations for personal injury claims is two years, and you shouldn’t assume it’s longer.

A lawyer can also investigate the claims and explain the likelihood of success before being hurled into protracted litigation.

So talk to a lawyer about your case.

When you retain our law firm:

  1. We investigate your claim
  2. We evaluate the case in a holistic manner
  3. We prepare the most effective complaint possible
  4. We consider all of the potential claims
  5. We have time to address any procedural questions
  6. We make informed decisions that lead you to a successful result.

We believe it is best to retain a lawyer as soon as possible to discuss your claim. Contact a lawyer at the Law Offices of Daniel J. Siegel, LLC at 610-446-3457 for a free consultation.

 

Havertown Law Offices of Daniel J. Siegel, LLC Voted #1 Personal Injury Firm in Delaware County by Delaware County Daily Times Readers

The Havertown Law Offices of Daniel J. Siegel, LLC has been voted the #1 Personal Injury Firm in Delaware County by Delaware County Daily Times readers.

We are proud of our tradition of representing clients in an affordable client-focused manner since 2005 in:

  • Workers’ compensation claims
  • Auto, bus and truck accident claims
  • Slip and fall claims
  • Social Security Disability claims
  • And other personal injury matters

Thank you to our friends, clients, neighbors, referral attorneys and other lawyers for voting for our office! We are also proud to be recognized by our peers in Super Lawyers, and that our firm is listed in Best Lawyers in America.

Our staff, Daniel J. Siegel, Esquire, Nicole A. Kratzer, Esquire, Pamela A. Myers and Lindsey E. Wilkinson, look forward to continuing to represent our friends, neighbors & colleagues throughout Delaware County and the Philadelphia area!

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