10/18/2007: Bockar v. Tartler d/b/a Rocky Mountain Limousine

This is a personal injury case involving a car accident. Plaintiff, a radiologist, is claiming significant money damages for his loss of income, claiming that he can no longer work or do any physically demanding activities. Defendant has performed surveillance over a period of three years, and the video shows the Plaintiff doing yardwork, loading various items into cars and walking. Defendant’s attorney has prepared DVD’s with the “highlights” of the hours of video that he plays during Plaintiff’s cross examination. During the examination, many jurors ask questions out of frustration, including, “is that supposed to be the Plaintiff?” During questioning prompted by the jurors’ questions, the Plaintiff testifies that he isn’t sure that the subject of the video is him, as the images presented at the time of that question were not clear. Later in the examination, the video clearly shows the Plaintiff, but because of the earlier confusion, the presentation is confusing and the impact lost.

Moral: Obtain sufficient identification and authentication information for any surveillance tapes well in advance of trial. This may be that rare case where written discovery, such as Requests for Admission, can actually assist a trial lawyer. It is generally not the case that surveillance video has greater impact if it is “sprung” on opposing counsel at trial. Set the video up during the party’s deposition by asking specific questions about their physical abilities, obtaining their denial that they are capable of doing those activities, and then use the authentication from Requests for Admission to set up the video so that it can be presented smoothly, without confusion.