Posted on Thursday, February 11th, 2016 at 4:07 pm
Insurers frequently hire private investigators to spy on injury victims (plaintiffs) to try and attack their credibility. This is done by showing the plaintiff is able to do something that they claim they cannot do. This can be very powerful evidence if the plaintiff is found contradicting him or herself. In fact, this evidence can be so powerful that insurance companies spend hundreds of millions of dollars paying investigators to record the activities of accident victims.
What is important to keep in mind is that most of the damage that is caused by surveillance can be counteracted in two ways.
First, it should be explained to injury victims that when they say “can’t”, that frequently means cannot at all, as in never. Therefore, if an injury victim really means that they can’t do an activity without pain or difficulty, or for long periods of time, or without feeling a tremendous amount of pain afterwards, or without taking large amounts of pain medications, then all of these things should be said as opposed to just loosely saying “can’t”. The insurance company will scour through documents such as past medical records looking for words like “can’t” and then hope their investigators find an injury victim doing something they say they can’t. Therefore, injury victims should be careful when they use words like “can’t” when speaking to doctors and assessors and ensure that if they say can’t, they mean not at all, not ever.
Second, ensure your lawyer serves the necessary documents by sending them to the insurer’s lawyer so that you get to examine the defendant first. That is, in most court cases, each side gets to ask questions (examine) the other party by asking them relevant questions and this examination is recorded. This process is called discoveries. The rule is that the side that serves (sends) the other side a notice of examination (a document that tells the other side when and where they will be examined) first gets to examine the other party first before being examined. The reason it is so important to examine the defendant first is because a question that should always be asked of the defendant is what are all the particulars of the surveillance that was conducted on the plaintiff. This way, there are no surprises when the injury victim is finally examined—the victim will know (and sometimes be reminded) what he or she did on certain days. This way, the injury victim will not accidentally say something that looks like it is contradicted by a surveillance video. If an injury victim does not get these surveillance details before he or she is examined, he or she may inadvertently forget certain events and purely by accident state something that is contradicted by surveillance video. If this happens, the defence lawyer will do everything he or she can to make the contradiction seem intentional (even if it was accidental) and use it to attack the injury victim’s credibility.
In summary, if what someone really means is that they have great difficulty doing something, then that is what should be said to doctors and everyone else, not that they can’t do something at all. Also, it is important that the defence is examined first so that the injury victim can know the details of the surveillance the insurer has done “before” he or she testifies in a discovery.
Disclaimer: Do not, under any circumstances, rely on information found in this article as legal advice. Legal matters are often complicated. For assistance with your specific legal problem or enquiry please contact one of our knowledgeable personal injury lawyers, any of whom will be pleased to determine whether our firm can assist you.