17 Oct 2016

Surveillance Videos: The Dos and Donts for a Personal Injury Plaintiff

Victims of negligence often ask if the defendants and their insurance companies have the right to follow them and videotape them in connection with personal injury lawsuits. They unquestionably do and it is imperative that plaintiffs in a personal injury lawsuit understand this and accept this as reality.

Personal injury lawsuits often resolve for significant sums of money. An insurance company who could potentially be responsible for paying a large sum of money will vigorously defend their client using all potential avenues of defense, including surveillance. While this may seem intrusive or “a dirty tactic” to the public, properly done surveillance helps weed out fraudulent claims and reduces the number of frivolous cases in the Court system. There are limits though. An insurance company cannot tap a phone or take video of someone through a window of that person’s home. Some basic privacy rights are retained.

The main thrust of any surveillance video is the potential to catch a plaintiff doing an activity that the plaintiff testified they can no longer do. The surveillance can also show the plaintiff acting in a way that is inconsistent with their claimed injuries and the medical records. It really comes down to an attempt to catch the plaintiff in a lie with direct video evidence. In New York, and most jurisdictions, a plaintiff who is not truthful faces an uphill battle as a jury will be allowed to consider that the plaintiff who lies about one thing may be lying about multiple things. Further, a plaintiff shown to be less than truthful immediately transforms from the “injured plaintiff” to the “lying plaintiff” in the eyes of many jurors. Jurors often are reluctant to award proper compensation to a plaintiff they deem to be less than honest.

Surveillance of a plaintiff does not come without risks to the defense and to the insurance companies who retain investigators to conduct such surveillance. Surveillance can be very costly and should really only be used in cases where the claimed injuries are significant and where there is a reasonable suspicion of exaggeration or outright fraud. Another risk of surveillance is that the surveillance may, in fact, corroborate the injuries claimed. If this is the case, and the surveillance is still utilized in the defense of the case, the risk of angering the jury is great. When surveillance backfires on the defense, the plaintiff usually benefits.

Understanding these issues and properly advising your clients is an integral function of the plaintiff’s attorney. With that in mind, there are certain Dos and Don’ts for the plaintiff in a personal injury case:

  1. Tell the TRUTH! This cannot be emphasized enough. A plaintiff must be instructed to not exaggerate or attempt to bolster their case by claiming injuries they simply do not have. A plaintiff must also be cautioned to not claim they cannot do something that can easily be dis-proven. For example, if the plaintiff testifies that he/she needs a cane to walk down the street, that better be the case because that can easily be verified with a simple surveillance. If a video surfaces showing a plaintiff walking down the street without their cane, their credibility and the extent of their claimed injuries will be seriously questioned.

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