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Surveillance - Should It Concern You?

One of the emotional issues many clients experience when they pursue recovery for injuries suffered in an accident is the perception that their life is under examination, while the person, who caused their injury, appears to go on with their affairs seemingly unaffected. This perception exists regardless of whether clients suffer injuries from a car crash, motorcycle accident, pedestrian or bicycle accident, fall or medical malpractice. Clients frequently voice this feeling if their case progresses into a law suit, and they are required to complete sworn answers to written questions (interrogatories) and give sworn testimony at a deposition. Every aspect of their life seems to be under examination.

In virtually every case involving any significant injury, their life is likely to be under close examination. Insurance companies routinely hire private investigators to gather information on them using surveillance. It may be as simple as having an investigator park near their home to video their activities outside their residence. Simple things people do are subject to surveillance, like walking the dog, taking out the garbage, bending over to pick up a newspaper or any outdoor activity. Clients are commonly followed to work, shopping or other things they routinely do.

It is not uncommon for an investigator to learn of something a client routinely does and follow them to observe what they do and how they do it. For instance, if someone frequents a gym or health club, an investigator may become a member in order to observe and photograph the person’s movements within the facility. They often use still photography and video in order to record their subject, even concealing small cameras to avoid detection.

What do they accomplish with all of this activity? One of the goals of the defense is to have the plaintiff commit themselves to any limitations in their ability to move normally or carry on their normal activities. Many surveillance assignments yield no useful information. What they are looking for is to film the person doing something which appears to be in conflict with what they said they were capable of doing in their interrogatories or sworn deposition testimony. They hope to show that evidence to the jury to contradict, or impeach, the person’s testimony. Their goal is to destroy the person’s credibility in the eyes of the jury. It may be as simple as showing someone effortlessly lean over to pick up a newspaper, especially if they have testified it is something they are unable to do.

What can an injured person do to minimize the impact of surveillance evidence? First, never try to make more out of injury than actually exists. Be honest with your lawyer and the other side with any limitations or restrictions affecting your life. Second, carefully listen to any question you are being asked at deposition, and thoughtfully respond to it. Do not be so general in your response that it becomes an exaggeration. For instance, I once saw a witness testify at a deposition, that they “could no longer do yard work.” Later they were confronted with a video showing them spreading mulch in their flower beds for more than hour. They explained they were capable of mulching but not of doing other types of yard work. Unfortunately, their deposition answer was too generally worded and in fact, appeared to be an exaggeration. It became a big problem in the case.

Thirdly, be alert when the lawyer asks “have you ever. . .” gone to a particular location or done a particular activity. They may have film of you doing that activity.

Finally, always assume you are under surveillance. Conduct what you do as though you are being filmed. Answer any question at deposition as though you know they have been watching you. Tell the truth, it never gets you into trouble. With that in mind, surveillance will be of no concern to you.

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