When a railroad worker is injured while at work due to the negligence of the railroad, The FELA - Federal Employers' Liability Act allows the injured railroad worker to seek monetary damages from the railroad for his injuries. If the claim is not settled, it will most likely be tried before a jury. Prior to the jury trial, both the railroads' attorneys and the plaintiff's attorneys will evaluate how a jury will perceive the plaintiff's credibility, the witnesses' credibility and the weight of the evidence.
PERCEPTION MAY BE MORE IMPORTANT THAN FACTS
The litigation process is combative and credibility is important. The injured employee must understand that the railroad will ask every question and investigate every issue as it attempts to minimize its liability. The railroad will question whether it was at fault in causing your injury, whether the injury happened on the job, the severity of the injury and whether the injury prevents the injured person from working. The railroad lawyers know that perception may be more important than the facts of an injury when the facts will be presented to a jury. Accordingly, the railroad lawyers will take bits of information from the injured plaintiff's life out of context and make these bits of information the cornerstone of their defense of the case. Reality will be distorted to sway a jury and discredit the plaintiff. This objective is accomplished through the use of videotaped surveillance. The railroad's lawyers cannot be prevented from surveillance tapes making these arguments, but the injured employee can do something about being videotaped and preserving his credibility before the jury.
JURORS RECEPTIVE TO VIDEO SURVEILLANCE
As you know, we live in a video society. That is, people watch a significant amount of television, and the television is a familiar means of getting information. Studies have shown that jurors like to be actively involved in the trial process. The studies also have shown that jurors are receptive to information given to them over a television screen since it is such a familiar source of information. At trial, the railroad will put into question the legitimacy of an injury by having a doctor discuss the plaintiff's medical condition. Typically, the jury is required to sit passively and listen to the presentation of "boring, dry" evidence.
However, when the railroad shows the jury videotapes of the plaintiff doing some activity the railroad claims is contrary to the injured person's medical condition, the juror is asked to become a detective and engage in "hands-on" analysis of evidence.
Surveillance can occur over a period of months and years. During this time, an individual with an injury will have good and bad days during the healing process. However, only the individual's good days will be filmed and edited by the surveillance firm to be presented to the jury at trial. There will be no videotape of the plaintiff taking pain medication, participating in physical therapy or sleeping on the sofa because the pain prevents him from walking up the stairs to the bedroom. The jury will only see the injured employee doing a physical activity that supports the railroad's argument that the employee is not as injured as he claims to be. Even if it is a one-time event and the employee could not do the activity again, e.g., playing catch with his children or loading a fishing boat on a trailer, the railroad will argue at trial that the plaintiff was "caught" in the act and it is likely that this is an activity that is done often.
RAILROAD SHOULD BE ON TRIAL NOT THE INJURED WORKER
Credibility is an issue at all times during the litigation process. If the jury believes the surveillance tapes accurately depict the plaintiff's activities and that the plaintiff has not been honest about his abilities and injury, not only will the monetary recovery through negotiations or verdict be affected, but the trial result may be a "not guilty" because the jury did not believe the plaintiff how the accident happened. A videotape of the injured employee exceeding his medical restrictions gives the railroad the opportunity to put the plaintiff on the defense at trial and force him to explain why he did what he did. When a FELA case goes to trial, the railroad should be the defendant - not the injured railroad worker.