Toronto Injury Lawyer Blog
Movies get us thinking that video cameras are everywhere, and that they capture everything. Think of your favourite crime show, or crime movie. There’s usually footage of a bad guy caught on camera in the act which is used in some way, shape or form, to move the plot along.
As an experienced personal injury lawyer, I can tell you that the way things work on TV are far from how things work in reality and inside of a Courtroom.
Cameras are everywhere, but they don’t always work the way you might think
Not all cameras are created equal. Some capture remarkably high quality footage which is of great help to a personal injury lawyer. Other cameras are able to track moving people or objects which is also very helpful to a personal injury lawyer. Other cameras capture pictures which are so terrible that they are unusable. Other cameras capture footage which automatically gets destroyed after a predetermined period of time (like 48hrs). If the footage is not preserved before it gets automatically destroyed, it’s lost forever. Some cameras can only record in daylight, so anything that happens at night is unusable. Other cameras don’t even work at all because they’re broken, or simply unconnected or have no power. Some cameras are “dummy cameras” meant to deter, instead of record. If you’re able to secure good and usable footage for a personal injury case, that’s wonderful. The footage will speak for itself. A Judge and Jury will be able to make up their own minds of what happened after reviewing the video footage. But don’t assume that just because there are cameras around, that they will produce useful footage. Often times, the footage is not very clear at all. You would be amazed the amount of times in a personal injury case that the lawyers track down the footage, only to find out that the camera was pointed metres short so the incident took place off screen.
The video footage might not tell the whole story
It’s not often that a personal injury lawyer gets footage of an accident which tells the entire story. It can certainly happen. But it’s not a common occurrence. Just because the video footage of the accident is secured, doesn’t mean that one side will automatically win, or loose the case. A narrative around the footage still needs to be told in order for the footage to support one side of another. Often the video is incomplete, or parts of what happened are out of frame. What happened off camera can be equally, or more important, to what’s captured on camera. A Plaintiff must never believe that simply because there is video footage of what happened that their case is guaranteed to succeed. At law, there are no guarantees.
What’s shown on the video tape can be very different from our memory of what happened
The mind can play tricks on us. That’s for sure. Often our version of the events and memory of the events is very different from what actually happened. Sometimes, it’s not even that our memory of the events is off. Rather, it’s the way which we explain how the events occurred and how our explanation gets interpreted. Things can get lost in the explaining of it all, or lost in translation. Think of it as a game of broken telephone. The game starts with a simple message, but by the end of the game, that message is often completely different. There are very real problems with this. If one of the parties oral evidence is different; whether that difference is intentional or not; from what’s shown on tape; that party will be unreliable and lack credibility. Neither of these qualities are good characteristics for a Plaintiff in a personal injury claim. A Plaintiffs wants to be reliable, dependable, and credible. If a Plaintiff story is exaggerated compared to what’s replayed on the video tape, then it begs the question as to what other things is the Plaintiff exaggerating about? Is s/he also exaggerating about their injuries, damages, and losses? These are questions and doubts which a Plaintiff wants to stay away from in the course of their personal injury claim.
Video footage does NOT automatically get released to personal injury lawyers
Lots of people seem to think that if a personal injury lawyer asks for video footage of an incident, that it automatically gets released right away (like within 24hrs from the date of the request). There is no government data base of video footage for slip and falls which take place at suburban plazas. These sort of things happen on TV. They do not happen in reality. More often that not, the video footage will be to be released by way of Freedom of Information request. These requests are not always approved. If they are approved, they take months, if not over a year, to process. Sometimes the footage is not held under the jurisdiction of the Freedom to Information legislation. The personal injury lawyer will need to seek a Court Order to have the video footage produced. Getting a Court date takes months, if not longer. Ask yourself: If you are a Defendant property owner, are you going to be eager to cooperate with a personal injury lawyer who is suing you? Likely not. If the footage isn’t favourable to a Defendant, is it strategically wise to delay the production of such footage by any legal means necessary? It’s very rare for a Defendant to open their data bases at will and submit to a case brought against them. Expect the Defendant to put up some form of resistance.
There is no automatic right to access when it comes to video evidence
Just because you’ve been involved in an accident; and that accident is caught on tape; it does not give you an automatic right to access that tape. A Plaintiff is not automatically entitled to video footage of their accident as a right. There are legal hurdles to getting access to the footage which need to be cleared.
