We have all defended a case against a plaintiff who claims they were physically active prior to an accident, but that accident caused them to cease all physical activity. They may allege that they used to walk for miles every day or go to the gym frequently prior to the incident, but now they cannot anymore due to their injuries.
There are great ways to investigate those subjective claims with objective evidence. Whether you are litigating in New Jersey Superior Court under R. 4:10-2, or in Federal Court under F.R.C.P. 26, this article will briefly touch on 3 highly effective methods to investigate such claims made by plaintiffs.
Method 1: Leveraging Social Media for Plaintiff Investigations
Nowadays, almost everyone has a social media account such as Facebook, Instagram, or X (formerly Twitter). If the plaintiff is an avid user, those accounts will almost certainly capture the plaintiff’s activity both prior to the accident that caused them to sue your client as well as their activity after the accident.
The plaintiff may post photographs of them being active despite claims that they are unable to be. Those social media profiles are discoverable, particularly since the Appellate Division issued its decision in Davis v. Disability Rights New Jersey.
A demand should be made to the plaintiff’s counsel at the outset of litigation that they preserve and disclose all social media profiles, as well as their production. We will frequently set up Zoom inspections of profiles whereby the plaintiff or their attorney maintains control of the profile, but they share their screen through Zoom and we direct them where to go on the profile and preserve what we feel is relevant.
Method 2: Using Smartphone Data to Assess Activity Levels
It is relatively unknown that our smartphones track our steps. During the deposition of the plaintiff, you should elicit testimony as to their activity levels both prior to and subsequent to the accident in question.
Ask if they have a smartphone and get the type of phone. Ask if they wear a smartwatch, FitBit, pedometer, or any other fitness or step tracking device, which will provide more accurate data.
Once plaintiffs commit themselves to an activity level, after the deposition, demand that they produce all step counting information from the smart device.
If they use any fitness apps, demand the production of that information as well. The plaintiffs or their attorneys will likely claim that they do not know how to access that information, so be prepared with detailed step by step instructions (phone specific) on how to retrieve and produce the data. You may find that plaintiffs are actually taking more daily steps after incidents than they were prior.
Method 3: Capturing Incriminating Evidence Through Surveillance
Conducting surveillance upon a plaintiff is another way to capture them participating in activities they claim they cannot do as a result of the incident. As the old saying goes, if a photograph is worth a thousand words, then a video is priceless.
Catching a plaintiff on video doing something they claim they cannot do would obviously aid in your defense of the case. Be careful with your timing of that surveillance, however, since in Federal Court, you may be required to produce any such surveillance prior to the plaintiff being deposed (if you conduct surveillance early on in litigation).
In State Court, you will have the opportunity to depose the plaintiff prior to producing the surveillance footage. You should also be wary of how that surveillance will play to a jury, as some jurors may become more angry at the defendant for conducting the surveillance in the first place rather than at the plaintiff for lying about their activity level.
Cost-Effective Strategies to Challenge Plaintiff Credibility
These are some highly effective methods of investigating a plaintiff. The investigation of their social media profiles and smart devices comes at very little cost to your client and could reveal a plethora of relevant objective information that you can use to attack the plaintiff’s claimed limitations and overall credibility.
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