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Be ready when defense goes to the videotape.

No plaintiff lawyer trying a traumatic brain injury case should be surprised when the defense presents a well-edited videotape of the plaintiff performing everyday activities that most reasonable people would assume he or she cannot do. Your job is to make it clear to the jury that the tape offers a very limited--and misleading--look at one part of your client's day. To do so, take these steps:

* Obtain all the original footage, not just the edited version. You can probably argue that the videotape is biased because it shows only carefully selected scenes, reflecting the defendant's effort to refute the claim. What has been omitted? What do the surveillance notes say?

* Find out the circumstances, date, and time of each taped scene and how many hours were spent on the investigation. In many cases, the tape merely suggests that your client can sporadically perform certain activities; it does not indicate, that he or she can do them on a sustained basis.

* Depose the investigator who made the tape. Determine whether it was created using telephoto lenses or misleading camera angles.

* Find out whether your client knew he or she was being videotaped. Was the client induced or manipulated into engaging in these activities? If so, you can make a compelling argument that the tape was made deceptively.

* Remind the jurors that relying solely on the videotape requires them to ignore the observations of the trained professionals who have assessed your client's physical capabilities.

Stephen M. Smith

Hampton, Virginia
COPYRIGHT 2004 American Association for Justice
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2004, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Author:Smith, Stephen M.
Publication:Trial
Date:Mar 1, 2004
Words:248
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