Litigation and the Risks of Social Media

Litigation and the Risks of Social Media

Today social media use is an integral part of everyday life for many.  There are numerous platforms people use for communication, such as Facebook, Instagram, Twitter, Snapchat, TikTok, emails, texts, etc.  Electronic communications and interactions on social media can be easily done with the use of smartphones.  Statistics show there are currently an estimated 6.8 billion smartphone users in the world.

While technology has made life more convenient and has offered new innovative ways to communicate, those communications can pose significant risks if anyone finds themselves in a lawsuit or a potential legal claim.

Social media activities are sometimes posted in a public setting where everyone can see them, sometimes these activities are intended to be private, only for a select few.  However, information contained within social media accounts, whether public or private, can be discoverable in lawsuits, and can be used against individuals in court.  A few examples of how social media activities can impact or undermine claims in litigation include the following:

  • Personal Injury: In a personal injury claim, an insurance company or defense attorney could discover the claimant posting pictures or videos showing them on vacation doing aggressive physical activities, such as skiing, kayaking, mountain climbing, while at the same time the claimant states that they are seriously injured and unable to perform basic activities of daily living.  Even if the claimant attempts to explain that they are just trying to go on with their life and are in significant pain when doing these activities, these social medial posts can undermine their entire claim.
  • Business Litigation: Texts and emails can undermine a party’s argument that they did not communicate with the other side, or that they did not have a contract or an agreement.  Texts and emails can be severely damaging in any type of lawsuit because the parties who are writing those communications do not intend or expect them to be shown in court or used against them.
  • Family Law. Texts, emails and social media posts can be very damaging in divorce cases showing the activities of the parties for example, the negative or hostile interactions they have with each other, and/or with their children and whether they have engaged in inappropriate behavior.
  • Defamation. Posting defamatory content online about a business or another individual may expose the person who posted that content to a lawsuit for defamation.
  • Employment. Making comments about one’s employer or job online may get someone fired or prevent that person from being hired by prospective employers.  Social medial posts, texts and emails may also be used in any dispute between an employer and employee regarding any claims, including those based on wrongful termination and/or discrimination.  Social media posts by individuals showing photographs or videos of them doing activities that some may seem inappropriate, may also have a negative impact on the individual as far as their current or future employment.
  • Criminal Cases. Social media posts, videos or pictures can be used to support the prosecution of crimes.  Additionally, information from smartphones and apps can also be used to track someone’s location which could potentially impact the investigation of various crimes as well.

If someone deletes their social media posts and regularly deletes their emails and texts, will that help protect them from having this information used against them?  The answer is: “It depends.”  If someone keeps their posts, emails and texts private for the most part and routinely deletes them, that will be helpful in maintaining privacy.  However, what typically happens in a lawsuit is that when a party files a lawsuit based upon a potential claim that they have against someone else, it is only after the filing of the lawsuit that they engage in what’s known as “discovery,” and it is at that time that they are able to uncover the treasure trove of texts, emails and any social media posts that the opposing party has.  Even if the opposing party has deleted any potentially incriminating evidence prior to the lawsuit, today’s technology will allow vendors who have expertise to be able to retrieve deleted information that can be used against that party.  Additionally, it may be possible to subpoena someone’s search history on Google or other platforms even if it is deleted from their smart device.

It is noteworthy that once a lawsuit begins, if a party intentionally deletes social media posts, emails or texts, that party can potentially be accused of destroying evidence which will negatively impact their position in the lawsuit.  Therefore, deleting social media posts, emails or texts comes with a risk, and may be contrary to that jurisdiction’s laws if there is a potential claim or lawsuit pending.

In conclusion, one needs to be extremely careful of what they post, how they post it, and what they text and email and to whom, as there may be a risk of creating a permanent electronic trail of one’s activities which can have significant ramifications in the context of a lawsuit or other aspects of that person’s life. If you are ever in a situation where your social media posts or electronic communications may be used against you in court please contact one of our experienced attorneys.

 

The Catch With An Account Stated

The Catch With An Account Stated

“An account stated is an agreement between a debtor and a creditor that the items of a transaction between them are correctly stated in a statement rendered, that the balance shown is owed by one party to the other and that the party has promised to pay that balance to the other.”[1] Put simply, this means that if a party claiming to be owed money sends a statement showing a balance owed and the other party does not object, that party may be responsible for the amount stated. Even more simply, this means that if there is a dispute over the amount claimed to be owed in a statement, the party receiving the statement should immediately object. The objection should be in writing and specific. Silence in the face of an account stated is not golden.

Wisconsin law informs us that in an action on an account stated, “the retention of a statement of an account by a party without making an objection within a reasonable time is evidence of acquiescence in or assent to the correctness of the account.”[1]  Said differently, an implied agreement to pay may be presumed from such retention. In addition, an account stated may arise where a debtor makes a partial payment on an account or accompanies partial payment with an agreement to pay the balance.[2]

To illustrate the legal theory of account stated in action, let’s briefly examine the Wisconsin case of Stan’s Lumber v. Fleming. Naturally, Stan’s Lumber sells lumber. Mr. Fleming inquired whether Stan’s Lumber would provide building supplies for a home he was intending to build. Stan’s Lumber provided Fleming with a credit application which he completed and was approved by Stan’s Lumber. Shortly thereafter, Fleming began purchasing the materials from Stan’s Lumber. Stan’s Lumber regularly billed him for the materials. Fleming made some payments, but then stopped. At that time, Stan’s Lumber claimed an account balance of $33,200.99. Stan’s Lumber then continued to bill him for this balance plus the accrued financing charges. Importantly, after payments stopped, Fleming told Stan’s Lumber to be patient regarding payment, but failed to object to the account balance.

The court concluded that the evidence demonstrated a classic account stated scenario. In ruling for Stan’s Lumber, the court reasoned:

(1) Stan’s and Fleming formed an initial agreement for an “open account:”

(2) Fleming ordered materials on the account:

(3) Stan’s delivered the materials:

(4) Stan’s billed for the materials: and

(5) Fleming made payments on the account without objection. This evidence afforded a solid basis for the jury’s answer that, an account stated existed between Stan’s and Fleming.

In conclusion, the essence of an account stated claim is not the presence of a dispute between the parties as to a stated balance, but rather the failure of the debtor to object to the account, disputed or not, within a reasonable time. Ultimately, Fleming’s failure to object to the account balance resulted in his loss at trial. The takeaway is that a timely objection to an account statement with a disputed balance will go a long way to defeat a claim based on the theory of account stated.

[1] Onalaska Elec. Heating, Inc. v. Schaller, 94 Wis. 2d 493, 288 N.W.2d 829 (1980).

[2] Lepp v. Tamer, 1 Wis. 2d 193, 83 N.W.2d 664 (1957).

 

 

Going It Alone In Court

Going It Alone In Court

Individuals have a right to self-representation in Wisconsin courts and in federal court.[1]  Pro se is Latin for “on one’s own behalf.” When a litigant proceeds without legal counsel, they are said to be proceeding “pro se.” See, e.g. Rivera v. Florida Department of Corrections, 526 U.S. 135 (1999). Although proceeding pro se is allowable, that does not mean it’s advisable.

The proliferation of legal self-help books such as Law for Dummies and Free Legal Help Made E-Z create the perception that anyone can successfully self-represent no matter how complicated the case. This, in turn, plays into the overconfidence effect, which biases our judgment in three ways: “(1) overestimation of one’s actual performance; (2) over placement of one’s performance relative to others; and (3) over precision in expressing unwarranted certainty in the accuracy of one’s beliefs.”[2]   Overconfidence can be dangerous.  No self-help book would convince a logical person to perform an invasive surgery on themselves. Although the risks of self-representation are less drastic, the likelihood of failure is equally high.

In court, the self-represented are bound by the same rules that apply to attorneys. The right to self-representation is “[not] a license not to comply with relevant rules of procedural and substantive law.”[3] While some leniency may be allowed to pro se litigants, “neither a trial court nor a reviewing court has a duty to walk pro se litigants through the procedural requirements or to point them to the proper substantive law.”[4]   A court’s patience will run thin quickly if a pro se litigant fails to follow the rules. As one commentary states: “Although the court may make special concessions in certain pro se appeals, it cannot be said that pro se appellants have any advantage over appellants who are represented by counsel. Whatever minor procedural deviations are allowed, a pro se appellant cannot compensate for the lack of legal training and therefore has a greatly reduced likelihood of success on appeal.”[5]

Based on the “greatly reduced likelihood of success,” most lawyers would never recommend that someone proceed without assistance of counsel. However, there are certain situations where it is a viable option. For instance, given the lower stakes in small claims action and the fact that small claims courts routinely deal with unrepresented parties, small claims court can be an acceptable arena for proceeding pro se. The Wisconsin courts’ website publishes free legal forms for small claims. [6]  

In short, there are a lot of factors that influence the decision of whether to retain an attorney or go it alone. If you have any self doubt  about self-representation then you should seek professional legal advice.

[1] A “corporation must be represented by a licensed lawyer in a legal proceeding other than in small claims court. See Wis. Stat. § 799.06.” Jadair Inc. v. United States Fire Ins. Co., 209 Wis. 2d 187, 198, 562 N.W.2d 401, 405 (1997). The right to appear pro se in a civil case in federal court is defined by statute 28 U.S.C. § 1654.

[2] https://en.wikipedia.org/wiki/Overconfidence_effect

[3] Farretta v. California, 422 U.S. 806, 834 n.46 (1975).

[4] Waushara County v. Graf, 166 Wis. 2d 442, 451, 480 N.W.2d 16 (1997).

[5] D. Walther, P. Grove, M. Heffernan, Appellate Practice and Procedure in Wisconsin, Ch. 11, sec. 11.9 (1986).

[6] https://www.wicourts.gov/forms1/circuit/ccform.jsp?page=3&FormName=&FormNumber=&beg_date=&end_date=&StatuteCite=&Category=51; https://www.wicourts.gov/services/public/selfhelp/docs/countylegalresources.pdf

Are Contractors Actually Fully Insured?

Are Contractors Actually Fully Insured?

Anyone who has inquired with, or hired, a contractor or homebuilder has invariably seen or been told by the company that they are “fully insured.”  More times than not, this statement simply means that the company has a standard commercial general liability (CGL) policy. Unfortunately, these “fully insured” statements understandably give the customer a false sense of security that if anything goes wrong with the work performed by the contractor or builder, its insurance company will cover the damage and make things right. In fact, with a standard CGL policy, the opposite is true:  the insurance company will not cover damage that arises out of the company’s work (or its contactor or subcontractor). What is often referred to as the “your work,” “business risk” or “exclusion” directs to an exclusion in standard CGL policies that bar coverage for property damage to the part of the real property that the company is performing work on. The language often looks like this in CGL policies:

This insurance does not apply to:

  1. Damage to Property

Property damage to:

…. (5) That particular part of real property on which you or any contractor or subcontractor working directly or indirectly on your behalf is performing operations, if the property damage arises out of those operations.

Practically speaking, this exclusion bars insurance coverage for damages such as deficient or defective work performed by the company or damage to your property caused by the company’s work. The net effect of no insurance coverage means that any recovery by the aggrieved customer will have to come against the company itself, which, depending on the company’s financial status, can be exceedingly difficult. Not only are many contractor and building companies set up as legal entities designed to protect against liability, but Wisconsin law exempts up to $15,000 in business assets from execution of a judgment. See Wis. Stat. § 815.18(3)(b).

In summary, it is incredibly important to vet the contractor or building company prior to hiring. In addition to their reputation and longevity in the community, you can inquire whether they have any insurance coverage or bond above a standard CGL policy and whether they have the financial resources to pay a judgement if a dispute arises. Moreover, the Wisconsin Circuit Court Access search (https://wcca.wicourts.gov/)  allows you to look up a company and see if they have unpaid judgments entered against them. This due diligence is necessary because a contractor’s claim of “fully insured” means little to nothing when the contractor’s work is the subject of the claim.

 

Tips to Avoid Scams and Identity Theft

Tips to Avoid Scams and Identity Theft

In today’s fast paced world, there is no end to the types of scams that target people of all ages, income levels and backgrounds. According to the Federal Trade Commission, one out of every ten adults in the United States will become a victim to a scam or fraud every year. Although one might think that scams, fraud and identity theft are easy to recognize, a study conducted by the Better Business Bureau, FINRA (the Financial Industry Regulatory Authority) and the Standford Center for Longevity found that 53% of all people approached by scammers will engage with them, while less than half become immediately suspicious and ignore the approach.

To avoid a Scam, be alert to these warning signs – the Four P’s:

PRETEND – Scammers will pretend to be from an organization you know and may use technology to change the phone number that appears on your caller ID to a familiar organization, like the IRS, Social Security Administration, Amazon or a charitable organization.

PROBLEM OR PRIZE – Scammers will then try to convince you that you are in trouble with the government and that you owe money. Sometimes you will be told that there is a problem or unauthorized charge on one of your accounts and you need to verify the account information, or that you have won a sweepstakes or lottery, but need to pay a fee to get the prize.

PRESSURE – Scammers want you to act immediately before you have time to verify anything or check out their story. They may say that if you act right now, the problem will be taken care of immediately before any further problems or damage occurs.

PAY – A sure sign of a scam is that you are asked to pay in a specific way, like with a money transfer company or through a gift card. Some will send a fake check to you, ask you to deposit it and send them the money.

What can you do?

  • Block unwanted calls and text messages.
  • Never give your personal or financial information to a request you were not expecting. Legitimate organizations and retailers do not call, email or text you and ask for personal information.
  • Do not click on links in emails sending information you have not requested or that you are not expecting. While the email may look like it comes from a company you do business with, if you were not expecting it, it is probably not real.
  • Resist the pressure. Anyone who pressures you to pay or give them your personal information is a scammer.
  • Never pay someone with a gift card or a money transfer service and do not accept or deposit checks for the purpose of sending money back to someone else.

Finally, in the event you are targeted or fall victim to a scam, report it to the Federal Trade Commission at reportfraud.ftc.gov. If you believe you have been a victim of identity theft, you can also put an alert and/or a freeze on your credit reports. Both can be done by calling the three credit bureaus (Transunion, Experian and Equifax) or going to each bureau online and placing the alert or freeze yourself. You can lift a freeze at any time. A fraud alert will require creditors to verify your identity before processing credit applications.  A credit freeze blocks any access to your credit report. The purpose is to prevent someone who may be trying to use your identity to obtain loans or credit card accounts in your name.

For more information about common scams and frauds visit https://www.usa.gov/common-scams-frauds.

Do Pedestrians Have the Right-of-Way?

Do Pedestrians Have the Right-of-Way?

I recently heard someone say as they confidently stepped off a curb into the street, “In Wisconsin, cars have to stop for us. Pedestrians always have the right-of-way.” Having grown up in Michigan, where our rules of the road have their own oddities (look up a “Michigan Left” for an example), I was not sure if this stranger was correct or not. As I am an attorney and looking into and analyzing laws is part of my job, I thought I would do some investigation into this matter. So, before you confidently step out into the street, please read below to learn more about the Wisconsin Statutes for pedestrians crossing the street.

The statutes are broken into three categories based on if there are traffic lights and if there is a crosswalk.

  1. When the crosswalk is in combination with traffic lights, the rules are transparent. Pedestrians have the right-of-way when a green light or walk signal indicate that it is appropriate for a pedestrian to cross, especially if the pedestrian is already in the crosswalk. Pedestrians also have the right of way when walking on a sidewalk where an alley or driveway crosses the sidewalk. Vehicles must wait for pedestrians to cross the alley or driveway before entering or exiting. While this does not specifically disprove the stranger I overheard, it is already not looking good for their legal proclamation.
  1. If there is a crosswalk, but no traffic light, the pedestrian still has the right-of-way, but with a significant caveat; pedestrians cannot suddenly leave the curb or sidewalk and cross the street if it would be difficult for the approaching vehicle to yield. What stands out to me about this caveat, is that the pedestrian must do a mental calculation as to how quickly a vehicle can brake in order to determine who has the right-of-way. This is no longer as transparent as before, because it is impossible to tell how well a particular vehicle’s brakes are working. At this point the stranger’s proclamation about pedestrian’s always having the right of way has another serious strike against it.
  1. Lastly, to further disprove the stranger’s theory, when crossing a road in a location other than a crosswalk, pedestrians MUST yield to all vehicles. Meaning unless traveling on a crosswalk or a sidewalk, vehicles have the right-of-way.

While my story ended with everyone making it across the street safely, that is not always the case. Many drivers are becoming more and more distracted and unfortunately the expectation of paying attention falls on the pedestrian. Remember to look both ways, obey all crossing signals and cross at a crosswalk if possible.