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Using Surveillance to Aggressively Defend a Claim - September 4, 2019

Post-accident video surveillance, social media canvassing, medical record canvassing, and public record document searches are great ways to aggressively defend a claim.  These surveillance methods can help establish an exaggerated injury or demonstrate a prior disabling condition in personal injury cases.  They can evidence a person’s disparaging comments against a former employer in wrongful termination cases.  They can show guilt or intent in a criminal case.  They can demonstrate why a parent should not get custody in a divorce case.  The list is endless. 


In general, though, surveillance of any sort can be used to better assess liability and exposure of a case.  Whether for good or bad, defense attorneys can use information obtained from surveillance to form better litigation, settlement, and trial strategies.  Surveillance is simply a continuation of the immediate post-accident investigation strategies, as discussed in Abhay Nadipuram’s blog post, to aggressively defend a case.     


Video Surveillance

Post-accident video surveillance can be a useful defense tool.  Usually, this is used in personal injury and workers’ compensation lawsuits where requested damages and functional limitations seem out of proportion to the injury, information is obtained from witnesses that the plaintiff is acting outside the logical scope of his/her injuries or restrictions, and in high-value cases.   


Once helpful video surveillance is obtained, it is most often used to limit damage exposure.  For example, if someone alleges he/she is permanently disabled due to a shoulder injury, but then is captured on video pitching with the injured shoulder in a baseball league, this could be great evidence to show the injury is not as disabling as claimed.  Any video surveillance showing the injured person acting outside the logical scope of his/her injuries or restrictions can be very persuasive evidence for a jury or judge, placing their credibility into question.


One of the most effective uses of video surveillance occurs even before trial.  Presenting favorable video evidence to medical professionals and experts may provide them with a basis to give a more favorable defense opinion.  It can also be used to obtain admissions from the plaintiff during a deposition.  Securing good expert reports and admissions before trial can help lower the value of the case and potentially force a lesser settlement amount. 


Social Media Canvass

Lots of people use social media to update others about their lives:  new jobs, vacations, weekend activities, etc.  Information on Facebook, Instagram, Twitter, blogs, and other social media platforms is not necessarily private and can be investigated by parties to a lawsuit.  Even a simple internet search can provide useful information about a plaintiff’s participation in events, prior lawsuits, etc. 


In many different types of civil litigation, this information voluntarily given by the plaintiff/claimant can provide a good insight into their activities of daily living and thoughts, as well as provide useful admissions.  It is a good idea for defendants in a potential lawsuit to continually monitor the plaintiff’s social media posts in case relevant information can be used as part of the defense.


Like with video surveillance, social media information can be used during a deposition to get important admissions or with a medical expert to get defense-favorable opinions.


Medical Record Canvass

A lot of insurance companies use medical record canvassing services to get a picture of the plaintiff’s past medical providers and treatment.  Generally, a vendor who performs this service is contracted by the insurance company or an attorney.  A medical record canvass shows the medical providers the plaintiff has seen within a given geographical area to facilitate medical record requests to those locations.  Medical record canvassing usually happens when a claim is initially submitted or when it becomes litigated.  It can be especially important in cases where there is an indication the plaintiff had a prior similar injury or disabling condition. 


A medical record canvass is also a time-saver.  There are many occasions when the plaintiff drags his/her feet in disclosing past medical providers and medical canvassing is a way to get a faster and perhaps more complete picture of their medical history. A more complete record of a person’s medical history in personal injury and workers’ compensation cases is especially helpful for experts to give accurate and credible opinions.


Public Record Document Searches

Public record document searches can provide an abundance of information relevant to a claim.  For example, a court document search can provide information of past civil or administrative cases involving physical injuries, past crimes dealing with dishonesty, and property or businesses that a plaintiff has not disclosed.  These searches can be performed at all stages of a lawsuit, but are most helpful prior to a deposition, mediation, or trial.  The information obtained can help defend against damage claims and show flaws in the plaintiff’s credibility.


There are many ways to search Iowa criminal, civil, property, business, and administrative, records for individuals.  Iowa Courts Online, county assessor websites (or Iowa Land Records), the Iowa Secretary of State website, Iowa Workforce Development, etc. provide this type of information and are easy to search.  Also, Westlaw and LexisNexis both provide public record document search engines, but there is an expense associated with these services.   


Practice Tips

Once a defendant becomes aware of a potential claim, they should continually assess if surveillance is appropriate, whether it be video surveillance, social media canvasing, medical record canvasing, or public record document searches. 


Once a case is litigated, it is a good idea to perform at least a social media canvass and public record document search before moving forward with a deposition and mediation.      



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