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:
- 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.
- Be aware. A plaintiff must be told of the possibility of surveillance. An attorney must remind a plaintiff that this possibility exists. For example, it may not be a reasonable excuse for a plaintiff who testifies that they always need a cane to walk outside to claim that, on the occasion of the surveillance, they forgot to bring their cane. Even if it is true on that particular occasion, it raises significant questions and undermines their claims. A plaintiff who suspects that they are being surveilled must understand that the the defense only wants to show the jury the video that helps their case. A moment of forgetfulness if often enough to undermine an entire case.
- Act normal. If you suspect that you are being surveilled, a plaintiff should do nothing different from what he/she normally would do. A plaintiff should live his/her life and do whatever daily activities his/her injuries allow. A plaintiff who suspects he/she is being surveilled should not try and exaggerate his/her injuries for the sake of the camera.
- Privacy/harassment. Surveillance is allowed by law but there are limits. The defense cannot tap a plaintiff's phone. They cannot enter onto private property. They cannot interact with a plaintiff and speak with a plaintiff represented by counsel. They cannot harass your family. If any of these concerns exist, a plaintiff should immediately notify his/her attorney who knows what actions to take.
- Social Media. As our usage of technology and social media has evolved, so has the use of it in undermining a plaintiff's claim. A plaintiff's attorney must advise their clients of this danger and caution them on the use of social media as it relates to their case. This is true for both the injuries claimed as well as the status of the case. There are privacy settings in social media which should be utilized. Plaintiffs should also be cautioned against who they accept as friends on all social media sites. Plaintiffs should also be cautioned when they post photos to insure that the photos cannot be misunderstood. For example, a photo showing a plaintiff claiming a lower body injury dancing years before an accident should be identified and dated as such to avoid any misconception that the photo was taken after the accident. Additionally, a plaintiff should not use social media to provide updates as to the status of their lawsuit. Doing so will almost certainly be used against you by a savvy defense counsel. As a cautionary tale, a plaintiff who posted a status update saying they were expecting to recover a "lot of money" found themselves having to explain that comment in a very uncomfortable manner to a prepared defense attorney. As a result, the plaintiff was portrayed as greedy which led to a different outcome than was expected. Your case is private and personal. Its status does not need to be broadcast to the world.
- Tell the TRUTH! - Again, this is so critical that it needs to be repeated.