Surveillance is a tool sometimes used by the defense. Someone follows or stakes out the plaintiff and then records what they do, including filming various activities. If caught doing things which he or she claims can’t be done, this is evidence which can hurt a case quite badly.
The initial reaction of many is “that’s not fair, you can’t spy on people.” You can, actually. If there is no trespassing or engaging the individual with false pretenses, such efforts are typically legal. What you do in the public view is just that, public.
The sad reality is that surveillance is used by defendants because it is often effective. It’s effective because plaintiffs sometimes exaggerate their impairments. What’s even sadder is that frequently there is no real need for exaggeration. The real problems are bad enough.
Let me share a case study:
A few years ago, we had an FTCA case involving a botched shoulder injury. Our experts were quite damning of the VA surgeon. The client claimed he could not raise his arms above shoulder level. He couldn’t carry anything but the lightest bag or box. During his deposition, he showed the assistant U.S. Attorney just how limited he was. I believed him. Coming out of the deposition, I felt like our case had gotten stronger.
A few weeks later, the government lawyer took the deposition of our orthopedic surgeon expert. The doctor wasn’t as strong as I would have liked, but he connected all the dots. As I sat there, I thought to myself that it was a good thing we had such compelling testimony from the plaintiff himself.
As we were packing up to leave, the government lawyer said he wanted to talk to me. My immediate thought was a happy one, thinking he wanted to discuss settlement.
Oh no. The government lawyer opened his computer and cued up a video. There was my client retrieving heavy water bottles (the kind that go on top of a water cooler) out of the back of his car. He hoisted them up on his shoulder and carried them up the stairs to his apartment. After the first two scenes, with a bit of understandable mirth, the lawyer told me that this effort was repeated four more times. We could keep watching, or he could just send it to me.
In the end, we fired the client and got out of the case.
Are there instances where surveillance is done and it’s misleading or incomplete? Of course, that can happen. Sometimes there are good explanations for what might appear to be an exaggeration. Sometimes the material has been edited in such a way that it creates a false impression. A good lawyer is not going to drop a case based only on one snippet of video. Follow up is always required.
On the other hand, if it turns out that the surveillance is, in fact, “real,” then that’s a big problem.
The greater issue here is not whether surveillance is right or wrong – fair or unfair. It’s about honesty. If a client is not honest with us and the healthcare providers involved, we don’t really want to do business with that individual. It’s really that simple.
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