Lessons Learned

Surveillance Videos: When to Hold and When to Fold?

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BC-Injury-Law-Video-SurveillancePennsylvania law is well settled on the relevancy of surveillance videos and them being subject to discovery. What is not so clear is when the surveillance must be disclosed or produced. It is important to note that both the disclosing and producing of the surveillance are two separate events. The defense does not have to produce surveillance videos at the same time that they disclose their existence; thus, the question becomes when must the two events take place?

In addressing this matter, Pennsylvania Court’s strive to strike a balance. As stated in the PA Surveillance Compendium, “Pennsylvania Courts have recognized the competing interests at play when it comes to the issue of video surveillance—for Plaintiffs, it is securing a trial free from surprise, and for Defendants, it is the potential to expose fraud or exaggerated claims of injury.”

“Under the law today, you do not need to disclose the existence of surveillance footage until (1) the Plaintiff requests video surveillance in discovery, and (2) the deposition of the surveilled individual is taken. Morganti v. Ace Tire & Parts, Inc., 70 Pa. D. & C. 4th 1 (Common Pleas 2004) (Wettick, J.). You may wait until after Plaintiff has been deposed to disclose the existence of the surveillance video to Plaintiff. This is true even if Plaintiff propounds discovery upon Defendant months before his or her deposition is taken and specifically requests Defendant to identify and produce any and all surveillance videos of Plaintiff. This Rule preserves the impeachment value of the surveillance, while giving the Plaintiff time to test the integrity of the impeachment evidence.” Id.

In other words, prior to the plaintiff’s deposition, the defense may hold the surveillance in an attempt to secure contradictory testimony. Afterwards, the defense must produce the surveillance in a timely matter.

Other great related sources of information:

– Must surveillance videos be disclosed prior to trial if only used for impeachment purposes

Pennsylvania Surveillance Compendium of Law

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Civ Pro 101: “No Trial By Ambush”

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It’s 10:00pm the night before my first binding ADR. I am extremely nervous and anxious, but everything is coming together. My major points are outlined in detail, and with a little luck a defense verdict is attenable. While my client has exposure, there is a high-low agreement in place so our damage is capped. Who wants to lose small when they can win big? I open our electronic filing system to print a few pictures to show the minor damage to plaintiff’s vehicle as a result of the accident. And then I see, “Plaintiff’s Medical Records.” But wait, this is new. I open the document and begin to browse. Right away, I spot records from 2012, but we’ve had an ADR agreement in place since 2010, what are these new records? I continue to peruse. I see a three-day hospital stay in 2012, and then the words that forever changed my night, “lumbar laminectomy surgery in 2014.” My mouth dropped. The entire case has changed.

We have an Independent Medical Examination (IME) from 2009. There was an initial delay in agreeing on the arbitrator, followed by plaintiff counsel’s numerous continuance requests, but no mention of any additional treatment or surgery. This was Civ Pro Ambush 101, and I was in the middle of a full onslaught attack.

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Plaintiff’s Lawyer Barred from Defense’s Medical Exam

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A plaintiff’s attorney is not allowed to be present during neuropsychological testing of his or her client, a Lebanon County Court of Common Pleas judge has ruled.

Addressing an issue that has apparently gone largely untouched by appellate court review, Judge Bradford H. Charles based his decision mostly on the defendant’s doctor’s ethical objections and the fact that the plaintiff’s attorney had not been present when the plaintiff’s doctor examined the plaintiff.

Although the plaintiff had argued that the Pennsylvania Rules of Civil Procedure give plaintiffs the right to have counsel present during independent medical examinations, Charles looked to a 2013 Lackawanna County Court of Common Pleas decision, and determined that the attorney could not be present for the standardized testing portion of the exam.

“Permitting a third-party observer to be present during [the defendant’s doctor]’s examination would create an injustice that we do not believe was contemplated by a global evaluation of Pennsylvania’s discovery rules,” Charles said.

See: The Legal Intelligencer’s, Plaintiff’s Lawyer Barred From Defense’s Medical Exam

The Truth About Mentors

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“A truly great mentor is hard to find, difficult to part with, and impossible to forget.” In short, a great mentor is invaluable. A mentor highlights areas of opportunity and improvement where one is oblivious. However, mentoring is a two-way street. You get out what you put in. Keith Lee of Associate’s Mind – one of my favorite legal blogs – posted an excellent piece on the value of establishing a mentor and cultivating the relationship. Great food for thought for any young professional. Here’s a brief excerpt.

The True Purpose Of A Mentor

Often times, the first word that people use to describe mentors is “cheerleader.” That a mentor is someone who encourages and praises you.

I have never found this to be the case. In fact, if all someone who was theoretically “mentoring” me did was offer praise and encouragement, I would not consider them to be my mentor. Sure there will be times that a mentor will offer praise. But those times will likely be few and far between. A mentor who only gives praise is more akin to a fawning parent. Nice to have, but not the purpose of a mentor.

A mentor is not only there to encourage you.

A mentor is not only there to motivate you.

A mentor is not only there to inspire you.

A mentor’s primary purpose is to cultivate growth.

And growth is not easy. Growth is change. Growth is painful. Growth involves leaving behind certain aspects of your old self in order to make room for what you want to become.

Continue reading at, Associate’s Mind Primer For Young Professionals Seeking Mentors.

Bully Times — Be Prepared

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Tough

One day, one morning, one afternoon, it will happen — the inevitable encounter with the bullying lawyer. As I continue to acclimate myself with the practice of law in a new environment, with a new town comes new rules. For that reason, amongst many, I immediately identified with the following article. The writer outlines the importance of young attorneys standing ready to confront the older more experienced attorney that may will bully you. The author details how the foe may present him or herself in a number of disguises. Bullies do not always appear as the big bad wolf, they may very well be the sly cunning fox. Either way, it’s important that you stand your ground. Of course, we all make mistakes and can learn a great deal from the more seasoned attorneys; however, never allow that to compromise your ability or confidence to perform well. More experience is simply more “practical contact with and observation of facts or events.” Not superiority.

It Was Just a Routine Motion

One of the first matters I worked on involved drafting a relatively routine bankruptcy motion to reject a contract for a corporate debtor. After filing and serving the motion, I received a call from counsel to the counterparty to the contract. He immediately lit into me, accusing me of filing a frivolous motion, threatening sanctions and questioning my qualifications — that’s the G-rated version.

Whoa. I was shaken up. This guy was pretty seasoned, at least in terms of years of experience. At the end of the conversation I was convinced I had really messed up, and that my legal career was pretty much over.

Read more: You Will Be Bullied — Be Prepared