First, you should know that the defense will often try and get you on surveillance video showing that you are able to do certain activities that you claim you could not do. 

If the defense has gone to the trouble of getting surveillance video on you, they are required to turn over a copy of the video to us prior to trial.

In many instances, the video will show that you are able to do certain things. However, the surveillance video likely will not show anything that goes on in your home. Rather, the footage is usually when you are outside in public areas.

If you claim you cannot play basketball and are caught on video playing basketball, you have a significant problem. If you claim you cannot change a tire, and the defendant's investigator has you on video changing a tire that weighs 50 pounds, you have a problem.

When it comes to describing your injuries, I make it very clear that when you are questioned at your pretrial question and answer session, known as a deposition, you must be truthful about the extent of your injuries. You cannot exaggerate the extent of your injuries.

If you are unable to do something, then you must tell the defense lawyer what you are unable to do. If you are limited from doing something on a daily basis, then you must tell us what you are limited from doing.

If you have tried to do certain activities following your injury, then you should tell us that. There is no harm in trying to do those activities you used to do.

If however you claim you are unable to do certain activities, and then the defense investigator catches you on video doing those exact activities, you will have a significant problem and in all likelihood I will have to ask the court to withdraw as your attorney since ethically I cannot proceed forward and prosecute your case.

When the defense gets video of you walking down the street or you going to pick up your kids from school, we explain to the jury that the video to did not show the pain you experience on a daily basis. It did not show you reaching for your medication. It did not show your inability to do certain activities behind closed doors. We will eagerly admit that you were able to walk down the street or go pick up your kids and drive your car to school. However, we will also point out specifics that the video did not obtain.


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer