By Patrick Brown

With the advent of new technology from dashboard cameras to iPhones, it has become easier to capture a collision unfolding right before our eyes.

Chances are, if an incident wasn’t caught on an iPhone, iPad, tablet, dash cam, GoPro or camera, the local traffic, retail store or bank surveillance has caught something on their camera footage. Needless to say, privacy in our digital age is a rare phenomenon.

That being said, we no longer have to deal with uncertain, unreliable and unclear statements. We can now simply just watch real time video footage. We can slow it down, speed it up and pause at any moment. Gone are the days where we only get carefully crafted statements that are slanted at times to the view of the adjuster, investigator or police officer who is taking them. Things are not always as they seem. But remember, tapes are erased quickly and timely preservation is key.

Although new technology has made our lives easier in many respects, one needs to also remember that post crash still photos of damaged vehicles or lacerated extremities are nearly not as disturbing as seeing video of someone being seriously hurt or killed.

Watching a pedestrian get smashed by a car, flying 15 feet into the air and crashing to the pavement is very disturbing to most people. It becomes even more disturbing when you know who the person was and the life they led.

So what does this all mean in the realm of civil litigation? Well, to start, it is clear that we have completely entered a new age of technology where video footage has become, and will continue to be, so common that it will be unusual not to have footage. With this new digital age also come new practices and hopefully new laws.

Firstly, there should be no choice as to whether or not a video is preserved. I have one case where a bus driver rear-ended a car, pushed it into an elderly pedestrian and killed him. When seeking to obtain the video from the bus, I was advised that it was no longer available because according to the bus operator, the police had decided that it was not needed and therefore not preserved.

By the way, the elderly man was given a jaywalking ticket. Fortunately an eyewitness deposed that the car had been stopped for some time so as to let the elderly man cross the street. The bus however did not and barrelled into the rear of the car propelling it into the pedestrian.

Whether a crash is fatal or not, automatic downloading of video footage by government run agencies should be mandatory. Picking and choosing what footage is “needed” is simply not an option. New laws must be passed requiring mandatory preservation of all video footage and the release of such should be made to all victims and interested parties.

I acknowledge that this new practice of preservation can swing both ways — it may help you immensely or hurt you gravely, but a choice in which way you want to go should not be an option anymore.

As for sending clients a copy of the video, counsel should always take a step back and determine if it is prudent. This will require a conversation with the client as to whether they wish to see the video. They may wish to consult with others before they do. The same approach should also be considered for staff and at times oneself. I am no psychologist, but watching nasty and horrifying events again and again, can not be good.

When it comes to introducing video evidence at the trial, there are some things you need to keep in mind such as the authenticity of the footage. Not only do we live in an age where we can record almost anything, video recordings can be edited to rearrange the chronology of events depicted or distort the passage of time.

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About The Author

Patrick Brown is a partner at McLeish Orlando LLP and practises personal injury, wrongful death and medical malpractice law.