Cameras, Cameras Everywhere!
Two important warnings I give my New York injury clients at our initial consultation are:
- Be careful what you post on social media and
- Assume that you are being filmed from the minute I send a letter of representation to the resolution of your case.
I’ve talked about the pitfalls of posting on Facebook, Twitter and Instagram after an accident in other blog posts. This one will focus more on surveillance.
In today’s world of smart phones, Google Glass, and other miniature cameras, it is easier than ever to record someone without their knowledge. Due to its accessibility and ability to use it easily, video surveillance is very often used to assist in various legal proceedings, including defending against personal injury cases.
Insurance companies rely on video surveillance because, well, if a picture is worth a thousand words, a video is worth one hundred thousand. In my experience working on the other side, I can tell you that insurance companies operate under a false assumption that almost every New York injury case as an aspect of fraud, whether it is exaggeration of symptoms or over treatment by a health care provider. This is because many injuries stemming from car accidents are not those which are noticeable. After my 2012 accident, I was left with nerve damage to my left toe. Unless I told someone, they would never know I was severely injured just by meeting me. However, if the insurance carrier can find a “smoking gun”, in the defense of a claim, it will save a great deal of money, making corporate shareholders very happy. One of the least expensive and most effective ways to reduce the exposure on a claim is to put a claimant under surveillance.When is Video Surveillance Used?
Insurance companies may use video surveillance at different stages in the proceedings. They might use video surveillance early on in their initial assessment of a claim. When there are two different stories about how an accident occurred, video evidence can be the deciding factor. Claims adjusters may be able to review video footage that was made at the time of the accident to learn about how an accident really happened. Insurance adjusters may also use video surveillance as part of their ongoing investigation and during the litigation of an injury case. They may record a victim’s conduct after the accident to see whether the victim’s actions after the accident correspond to the claimant’s recitation of their injuries and symptoms. For example, if the victim states that he or she has a herniated disc in their back and can’t pick any thing up as a result, the insurance company may try to get recorded footage of the victim lifting groceries from his or her vehicle to contradict the victim’s statements.
One case I recall when I was a defense lawyer, a plaintiff complained that after his accident, he couldn’t walk and had a limp. He even walked into arbitration using a cane. I played the tape of the claimant walking without assistance back and forth over a gas station parking lot and pumping his own gas. No limp, no cane. Needless to say, I won and the plaintiff got nothing.Where Will I be Videotaped?
Insurance adjusters and their investigators must abide by the law. Therefore, they cannot disturb the privacy of a claimant in order to acquire video footage, such as by peering through a home window. However, insurance adjusters can usually obtain the footage that they desire in a public setting, such as a restaurant, grocery store, park, roadway or other area accessible to the public. One clever investigator taped my client sitting in the courthouse while we were waiting for his deposition to start. That’s all the investigator got on tape – my client sitting (no smoking gun!) . Just figure, whenever you leave your house, you may be subject to being video taped.
I am often asked by prospective personal injury clients if they should be concerned about surveillance. My simple answer is no. Insurance companies are notorious for hiring investigators to essentially “spy” on injury victims and record routine activities. Most of the time, the surveillance is worthless and not used by the defense in cases that a person is claiming a permanent injury (see above, the insurance company wasn’t going to use the tape of my client sitting). Unless a video depicts the claimant performing actions they have previously testified under oath, they are unable to do, or an act that requires extreme motion and strength of muscles and areas that were allegedly injured. Usually, videotapes just depict people going about their day to day living.
Now, if you testify under oath in a deposition that you have a permanent limp and you are caught on videotape walking, running, playing rugby, we are going to have a problem. If, however, you say under oath, that you have a problem lifting 25 pounds and you are videotaped carrying a carton of eggs, odds are that a jury see right through what the insurance company is trying to prove.
If you have a question about surveillance or any other legal issue stemming from an accident, feel free to give me a call. Consultations are always free.