Do insurance companies really use surveillance? Indeed they do.
Is this reason to panic? Of course not!
I used to work as a defense lawyer for the insurance companies and surveillance was an important defensive tactic.
In this blog I’m going to outline when and how insurance companies use surveillance and why it shouldn’t be an issue for you or for your personal injury case.
When do Insurance Companies Use Surveillance?
Every insurance company is different but, when I did defense work, it was used about a third of the time.
Some insurance companies won’t do it in a first party case, whereas other companies might, it really just depends.
So while it’s used regularly, I don’t know how often. I do know that, if a company is going to shadow you, there are key times when it’s going to happen:
At the Beginning of the Case:
Often when a claim is issued, the insurance company defense lawyer gets involved and gives an opinion. He or she may recommend a ‘brief activity check’ i.e. surveillance.
This usually happens if the lawyer reads in your medical reports that you’re housebound or not working. The reality is that it doesn’t take much to see if that’s true of not, so generally companies will conduct surveillance early in the litigation.
At the Examination for Discovery:
Sometimes you see insurance companies using surveillance around the time of the examination for discovery (called a deposition in the United States). This is the meeting where the defense lawyers ask you about your employment history, accident details, etc.
This is a good opportunity for them to set up surveillance because they know where you’ll be, so it’s easier to follow you around to gauge your level of activity/ability. Having said that, it’s the least frequent of the three times I’ve noted.
Preparing for Trial:
The insurance company’s defense team may use surveillance when gearing up towards trial.
At this point, the litigation is quite advanced (i.e. there’s a good chance they’re going to have to pay out) so the companies see surveillance as a good investment. I’m not referring to a few days before the trail – there are rules as to when you must disclose it, so think more to the months and weeks before your trial begins.
Why Do Insurance Companies Use Surveillance?
Fundamentally, insurance companies use surveillance for two reasons:
- To gather more information about how injured you really are so they can set a proper reserve aside (LINK)
- To poke holes in your credibility and believability
Both of these reasons add up to a single purpose: To lower the value of your case.
Insurance companies know that the truth is what the jury decides, and juries can make emotional decisions.
It is critical in an insurance case that you appear to be 100% credible, so it makes sense for the insurance company to introduce information that will cause the jury to question your credibility.
That’s why it’s usually done after discovery – to see if the claimant has been entirely honest and to catch them in a lie.
For example, let’s say that the defense lawyer asks you during discovery whether you’re able to do yard work since the accident and you say ‘no.’
The company now has you on the record as saying ‘no’, yet, when the trail begins, they introduce a video of you cutting the grass.
Now to be fair, it may have been that, tired of sitting around, you tried to cut the grass, but half way through, you were in too much pain and stopped. It may have been that when they said ‘yard work’ you forgot that included cutting the grass. But that doesn’t matter now.
They don’t need to find a big lie; they will grab on to anything.
The defense is simply going ask ‘what else have you lied about?” in front of the jury. It may have been an innocent mistake, but it doesn’t matter. The value of your case has likely gone down in the eyes of the jury.
How to Handle Surveillance
I always tell clients that the truth doesn’t hurt.
As long as you’re 100% honest every step of the way, surveillance won’t be an issue. Let them take video of you every time you step outside your house. It may not be pleasant, but if you’ve nothing to hide, there’s no risk and no reason to be scared.
People often have a sixth sense about it, or they simply observe that the same car has been outside their house for a day or two. I advise that, if you’re in a lawsuit, trust your instincts. But don’t worry about it. Just mind your business and act as you normally would. And certainly don’t get angry about it, or be flippant and knock on the window and say hello. As invasive as it feels, it’s not personal, and you’ll just make matters worse by getting upset.
If you really feel it’s out of hand, simply call your lawyer. He or she will help you determine if it’s legal or not (most invasive surveillance is illegal hence very unlikely.)
Also, don’t put on an act – this is about credibility. The truth always comes out whether it be through the documents or through surveillance so just be honest.
Remember: You want the litigators to deal fairly with your case, so you must also play fair.
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