New Mexico Injury Attorney Blog

Few recent technological advancements have affected the legal process the way that social media has. Social media is often a gold mine of information on the parties to a lawsuit. Though the issues apply across the board in all litigation, the focus here will be primarily on personal injury claims. More specifically, it will apply to the discovery process in a personal injury case.

To begin, let's start with those folks, surprisingly large in numbers that have yet to recognize the lack of privacy on social media. Amazingly, there are many in the midst of all varieties of litigation that have no privacy settings on their social media accounts. In other words, the world is free to browse around on their account. There is little to be said here since the social media histories may be readily obtainable with or without court involvement.

However, even for those who have set their security settings at their highest, there are still very real risks that those posts will end up in discovery, and if possible, used against them in court. For those that have no privacy settings, it is often possible to get all that is needed or available through informal discovery (i.e. just looking around). For those who think that their posts are protected from prying eyes due to their high privacy settings, they need to think again.

Simply put, for litigation purposes, these posts are public no matter what the privacy settings. There simply is no Facebook-client privilege. Worse yet, the attorney-client privilege can be waived by posting information about discussions with one's attorney. No kidding, it happens! So even though the posts are private (i.e. shared only with your closets 1000 friends), the information may be obtained through the discovery process during litigation. This means that the court can order you to turn over this information.

The Courts have taken various positions on the discoverability of this information. There have been cases where judges have simply required parties to turn over their passwords to their accounts (including Facebook) to the other side. This is the most extreme position since it has the potential of revealing very embarrassing but irrelevant information to the other side.

Other courts have required a party to provide archives from their social media accounts. Though this might seem somewhat less invasive since passwords are not turned over, it is no less intrusive and no less prone to abuse by hostile opposition parties.

Other more thoughtful judges have instead requested the information for in camera review. This means that the judge review the information in order to determine the scope of the discoverability limiting the information to that which is relevant to the case. This same objective might be achieved through the appointment of a Special Master that works to manage and supervise the discovery process.

There are numerous variations on these approaches. Moreover, discovery in the age of social media will continues to evolve quite rapidly. However, there is one thing that should be kept in mind and that is that no matter how the courts evolve on this issue, your social media to a large degree will be discoverable.

The rule on discovery is "relevance" not admissibility. Relevance allows discovery of anything that might lead to admissible evidence and this is a very broad swath across your social media universe. The evidence revealed on social media need not be admissible itself. It just has to be relevant and relevance is a fairly broad concept. Moreover, the rules of discovery dictate that courts err on the side of discoverability.

In a nutshell, whatever you post can and will be used against you! So think before you post. Once posted, it is too late. Social media is permanent. And attempts to delete or hide it give rise to all kinds of other problems (think sanctions, adverse inferences, contempt...).

If you find yourself in this situation and you have a personal injury claim, it is important to speak with an experienced personal injury attorney before taking any rash and potentially irreversibly harmful action on your own.

Related Reading:
Social Media Puts Courts Behind Technology
Growing Perils of Social Media - Your Insurer is Watching!
Divorce & Social Media - A Toxic Mix

Collins & Collins, P.C.
Attorneys at Law

Personal injury cases, especially those involving large insurance companies, can become extremely antagonistic. Sometimes, defendants will go to great lengths to avoid paying a personal injury claim. Many insurance companies conduct what has come to be called "disability video surveillance" in the hopes of proving that a plaintiff does not in fact suffer the injuries claimed.

While many individuals may consider being videotaped to be an obvious invasion of privacy, the law in New Mexico and other states allows insurance companies to videotape claimants without their knowledge and use it against them in court as long as they stay within certain limitations. Not only is it legal, it is allowable under the rules of discovery and admissible in court under the rules of evidence.

While private video surveillance of a person in their home or private place of business is not allowed under federal and New Mexico law, videotaping a person in public is perfectly legal. If a person works in a public place, like a restaurant or hotel, they can also be videotaped at work. Often times, plaintiffs are videotaped in their yard performing yard work, gardening or other physical activities. If in a public place, the person being videotaped does not have to be aware of being videotaped and does not have to consent to being videotaped.

However, if the videotape is going to be used in court, the New Mexico and federal rules of evidence place several requirements and limitations to its use. First, a videotape of a plaintiff is admissible in court if it is relevant to the case at hand. Evidence is relevant when it tends to make the facts of a case more or less likely. A video recording of a plaintiff can be relevant if it shows the extent of their injuries, how the injuries impact the plaintiff's daily life, etc. Second, under the rules of evidence, a defendant cannot simply state that there is a video recording of the plaintiff, but must provide the actual recording as evidence. Third, under the "rule of completeness" a party cannot just submit into evidence an edited version of the recording, but must submit the entire recording upon the other party's request.

Keeping this in mind, it is important to be aware of certain issues. Insurance companies rarely do the actual videotaping and surveillance. Instead, they contract local private investigators who are more familiar with the area and with surveillance techniques. In Albuquerque and New Mexico there are a very large number of private investigators who name "insurance fraud surveillance" as one of their specialties. For this reason, persons involved in a personal injury claim are advised to assume that they are being videotaped any time they go out in public.

And keep in mind, the video will not be shown in the most favorable light to the plaintiff so that even seemingly innocuous activities such as carrying groceries may be distorted to make the plaintiff appear dishonest. This should not be taken to mean that one should not carry groceries, do yard work or anything else. It simply means do not say you can't due to your injuries when you can. Exaggerating injuries is never good for a claim.

According to some personal injury attorneys, there are times when a plaintiff is most likely to be videotaped. These include the days and weeks surrounding a requested independent medical examination and during the days and weeks surrounding an interview. Surveillance is also likely in the months before definitions of disability are set to change.

Even though it may seem unfair, the law is that if a plaintiff is in a public place an insurance company or any other type of defendant can place him or her under video surveillance. Keeping this in mind, it is important for personal injury claimants to be aware of their actions and surroundings at all times during this process. These are issues that should be discussed with a personal injury attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

The $12 million verdict against Progressive Insurance last week in Albuquerque brings up a host of interesting issues. First, it is worth noting that the judgment was on counter-claims following a lawsuit initiated by Progressive against its own insured. Second, the verdict was 9 years in the making and the trial ending last week would not have occurred at all but for the persistence of the defendant/counter-claimant's attorney and the thoughtful analysis of the New Mexico Court of Appeals in its 2009 unpublished opinion Progressive v. Vigil.

The case involved a rollover car accident that resulted in the death of one of the passengers and serious injuries to 5 others. The police first suspected that alcohol was a factor in the crash but the driver later tested 0.0 on his blood alcohol test and the DWI related manslaughter charges were dismissed.

The gist of the case revolves around the bad faith denial of insurance coverage by Progressive Insurance for the passengers injured in the vehicle. Before getting to last week's trial, the case was dismissed on partial summary judgment by the first district court trial judge where the Vigil's claims were essentially dumped out. The judge in the first trial found that the plaintiff had failed to present evidence of coverage. In doing so, the court restricted consideration to the language in the policy itself, excluding from consideration verbal conversations with the agent, numerous automated responses, and subsequent notices indicating that the policy was in good standing.

The Court of Appeals found that this evidence should not have been excluded. Instead, it should have been presented to the jury for the jury to determine whether or not coverage was in place at the time of the accident. The Court stated that in the interpretation of insurance contracts, the courts are not restricted to the policy itself but may look to other evidence beyond the policy. Restriction of consideration to the policy itself is referred to as the "four corners" rule which means that the analysis is restricted to the four corners of the contract.

The Court of Appeals specifically rejected the four corners rule in cases involving consumer insurance contracts. The Court recognized that the great majority of policyholders rely largely or entirely on the representations of their agents. The court tacitly acknowledged that few if any consumers of insurance read the policy cover to cover. As such, the Court ruled that extrinsic evidence outside the contract such as conversations with an agent, automated responses, correspondence, and notices could be considered when ambiguity arises as to the terms of the contract. Specifically, the Court of Appeals stated:

"In this case, the evidence of the representations regarding the change in coverage to delete one vehicle and add another, followed by the repeated representations by the automated system and the customer service representatives about the November 15 premium date must be addressed at trial to determine whether the facts support a temporary contract of insurances, notwithstanding the existence of prior unambiguous policy language reflecting an end date of November 3, 2002." The Court of Appeals therefore reversed the district court's summary judgment on the coverage issue sending the case back to district court for retrial.

The evidence submitted to the jury this time around would have never gotten to the jury if the analysis was restricted solely to the insurance policy itself. Had the analysis been restricted to the policy itself, the jury would not have heard all of the evidence that the premiums were either current or at the very least that the Vigils were led to believe the premiums were current. Instead the jury would have heard only that Progressive made payments on the lapsed policy of a deadbeat client for which it sought reimbursement.

Fortunately, due to the New Mexico Court of Appeals and the persistence of the Vigils and their attorney, the jury did hear the evidence. And the jury spoke loud and clear. Suffice it to say that in light of the evidence formerly excluded by the original trial judge, the jury found Progressive's behavior to be outrageous enough to justify the $12 million verdict. In short, Progressive's miscalculation in filing a lawsuit against its own insured backfired in the worst possible way. We will have to wait to see how this verdict will be spun to paint Progressive and the insurance industry as the victim of greedy trial lawyers and opportunistic plaintiffs.

Collins & Collins, P.C.
Albuquerque Attorneys

Plaintiffs in personal injury cases, like anyone else, sometimes come with some baggage. On occasion, a plaintiff has been convicted of criminal offenses in the past. The question that most plaintiffs in this situation will want to know is whether these past legal transgressions can be held against them in their personal injury case.

Most plaintiffs in this position would rightly argue that a criminal conviction in the past has nothing to do with an auto accident today. They are partly right. The past criminal conviction is not particularly relevant to the determination of liability and/or damages in a personal injury action.

However, a past conviction though seemingly unrelated to the accident may come up with issues of credibility. For instance, if liability or damages are disputed, and a case goes to trial, a jury is basically asked to make determinations of credibility. In other words, who should the jury believe, the plaintiff or the defendant?

The rules of evidence regarding impeachment address these issues. Rule 609 of both the Federal and New Mexico Rules of Evidence address the admission of convictions for the impeachment of witnesses at trial. In other words, the rule addresses whether evidence of conviction is fair game for showing or more accurately suggesting a witness is lying. The rules apply to all witnesses including the plaintiff and the defendant.

Rule 609 provides that evidence of convictions can be admitted to attack the credibility of a witness was convicted of a felony or a crime of dishonesty if the court finds that its probative value is not outweighed by its prejudicial effect. Notably, evidence of a felony is more likely to be excluded than a misdemeanor crime of dishonesty.

To the chagrin of many witnesses, including plaintiffs in a personal injury case, crimes of dishonesty cover a lot of ground and include some seemingly innocuous offenses. Certainly, "crime of dishonesty" would encompass fraud, forgery, theft, burglary, perjury, false tax returns and so on. It also includes petty shoplifting among other petty offenses.

Many plaintiffs do not particularly want to share these embarrassing details with their lawyers. Any plaintiff would be well advised to assume that the defense attorney is going to do a thorough background check and will discover any and all past criminal convictions. The only thing worse than having this evidence admitted against a plaintiff is having the defendant show to the jury through cross examination that the plaintiff has lied about the past convictions. Now the plaintiff is both a crook and a liar in the eyes of the jury.

The best approach is typically for the plaintiff's attorney to address these issues with the jury from the start. It allows the evidence to be presented in the best light to the plaintiff. Most importantly, it takes the wind out of what will surely be penetrating cross examination and a blustery closing argument impugning the honesty of the plaintiff.

Collins & Collins, P.C.
Albuquerque Attorneys

In litigation of any kind, often the most time-consuming, expensive and frustrating task is discovery. Many times, parties and or their attorneys simply will not cooperate in the discovery process. The 10th Circuit Court of Appeals in Lee v. Max International has ruled that failure to abide by the rules of discovery can result in the dismissal of a claim.

In the Max International case, the plaintiff failed to provide lawful discovery. Some of the missing discovery items were tax returns which are readily available and easy to provide. The defendant was forced to file several Motions to Compel Discovery, each time resulting in an order from the district court directing plaintiff to provide the discovery. In fact, there were two such orders both of which the plaintiff failed to follow. The district court dismissed the plaintiff's claims.

The 10th Circuit affirmed the dismissal stating that "Our justice system has a strong preference for resolving cases on their merits whenever possible, but no one, we hold, should count on more than three chances to make good a discovery obligation."

The plaintiff did not deny that it had failed to abide by the court's orders. In fact, the plaintiff had issued a certificate stating that all discoveries had been provided. The 10th Circuit Court of Appeals took particular exception to the false certificate filed by the plaintiff.

The Court further ruled that the district court will be allowed considerable discretion in the issuance of discovery sanctions, including the rather extraordinary sanction of dismissal. Citing Charles Alan Wright in support of the district court's broad discretion, the Court stated "the district courts must have latitude to use severe sanctions for purposes of general deterrence."

The Federal Rules of Procedure are intended to ensure "the just, speedy, and inexpensive determination of every action." The Court recognized that this is far from the reality but recognized also that allowing parties to repeatedly violate orders from the court would most assuredly defeat those purposes.

Max International will certainly not stop discovery abuses. However, the Court's suggestion that the district courts have wide discretion in doling out even extreme sanctions for discovery abuse should at least cause some pause for those parties and attorneys that engage in such practices.

Collins & Collins, P.C.
Albuquerque Attorneys

In auto accidents cases, one might expect that the driving record of the negligent driver would be fully admissible at trial to help show that the person was at fault for the subject accident. Unfortunately, this is not always the case.

For instance, pre-accident driving records are not admissible to show the driver was negligent in the current accident. However, it may be admissible for other purposes such as a negligent entrustment claim. A negligent entrustment claim most often arises where an employer allows an employee with a bad driving record to drive a company vehicle. The company may then be held liable for any injuries or other damages caused by the employee under a negligent entrustment theory.

Post-accident driving records, no matter how bad, are often inadmissible at trial. Neither past driving behavior nor future driving behavior can be used to show the person was negligent in the current auto accident. Neither may future driving be used to prove a habit of bad driving under New Mexico law. Finally, unlike past driving behavior, future driving is not admissible on a negligent entrustment claim.

In order to show negligent entrustment, the company must have known of the employee's negligent driving habits. The company may be held to knowledge of the employee's prior driving behavior. This is the case even if the company does not have direct knowledge but could have discovered the driving history through background checks.

On the other hand, an employer cannot be imputed knowledge of bad driving habits based upon future driving behavior. Thus, without more, the employer will not be held liable under theories of negligent entrustment for the employee's actions in causing an auto accident. The employer may very well be liable on a number of other grounds, but not by way of negligent entrustment.

In short, though one might expect the driving behavior of a negligent driver to be most relevant evidence to prove fault, there are fairly strict limits on when and for what purpose driving behavior is admissible at trial in a car accident case. The injured person may simply have to rely on other evidence of fault than the driving history or driving habits of the other driver.

Collins & Collins, P.C.
Albuquerque Attorneys

Spoliation of evidence, or more commonly understood destruction of evidence, can result in the dismissal of a homeowner's claims against a negligent builder, subcontractor, architect, engineer or other party responsible for a new home's defects. The obvious question is how would spoliation of evidence occur?

The answer is that it could occur quite innocently. Whenever a homeowner takes it upon him or herself to repair problems, there is the possibility that evidence will be destroyed. Perhaps more accurately, it is possible that the negligent defendant will assert a defense of spoliation of evidence purely as a tactical matter. In fact, this defense is preached by the construction defense bar knowing full well that many homeowners will take action to repair or fix their most valuable asset rather than standing idle waiting for the contractor the fix the problem.

Many times, homeowners meet with delay after delay in addressing their problems with contractors or builders. Their grievances are routinely ignored. And why not, if the homeowner finally and predictably takes action on the problem, the contractor now has one more line of defense against a construction defect lawsuit.

To avoid the possibility or suggestion of spoliation of evidence claims, the homeowner should contact the builder or contractor immediately in writing with a detailed description of each and every defect. The injured homeowner must give the defendant notice of any intended repairs. Finally, the plaintiff must give the contractor, builder or other defendant the opportunity to inspect the defects themselves prior to any such repairs by the homeowner.

Once notice of repairs and opportunity to inspect is provided, the homeowner should document both the original defects and the repairs very carefully. As one might expect, the contractor or builder is likely to have a very different view of what happened partly due to their own self-interested documentation of the problems and the fixes. It is safe to say that these problems and repairs can never be over documented, but they most certainly can be under documented.

Once again, failure to provide notice and opportunity and to carefully document the defects and the subsequent repairs will undoubtedly lead to the spoliation of evidence defense. Careful attention and documentation should cut off this defense. Failure to provide notice and opportunity to inspect can and does lead to a dismissal of the claims.

Collins & Collins, P.C.
Albuquerque Attorneys

On occasion, a party responsible for an accident and personal injuries will offer to pay for medical expenses related to the injuries. This most often occurs in slip and fall accidents at retail establishments. It is just as common that the party later reneges on the agreement. On the rather rare occasion when the negligent party does pay for expenses, the question of liability and damages is still not necessarily settled.

In most cases involving personal injuries, there is some type of insurance involved. This certainly true of slip and fall accidents Insurance companies are not prone to pay out money on medical expenses or any other damages in the absence of liability on the part of their insured. In case of slip and fall accidents, it seems as common as not that the promise to pay is simply a ploy to get the customer out of the store as quickly as possible. In other types of accidents, there may at first be an admission of liability with a later denial once the full scope of damages is known. In other words, they may accept liability on what they believe to be a small claim which is fact turns out to be a large claim.

This can be both perplexing and frustrating to an injured plaintiff. Yet it is generally allowable under the law. In fact, it is codified in Rule of 409 of both the New Mexico and Federal Rules of Evidence. Rule 409 states; "Evidence of furnishing or offering or promising to pay medical, hospital, or similar expense occasioned by an injury is not admissible to prove liability for the injury."

What this means in practice is that a plaintiff cannot use the payment of medical expenses by the negligent defendant at trial for purposes of proving responsibility or liability for the injuries. The payment of medical expenses may be used at trial for other limited purpose but not for showing liability.

The Rule purports to serve a very valuable purpose. After all, it is said that the law does not want to discourage payment of medical expenses even where those expenses and the related injuries are in dispute. The rule allows the payment of perhaps disputed medical expenses in turn providing for the medical care of an injured party.

On the other hand, it is extremely rare where a defendant, particularly an insurance company, would pay out damages early in a case on disputed claims. Instead, the insurance company would want a release of claims in return for the quick and cheap settlement of disputed claims. This is far more common and occurs with some regularity.

In cases of real personal injuries, a quick and cheap settlement is generally going to be far more advantageous to the insurance company than to the plaintiff. After all, insurance companies and defendants generally are not in the business of philanthropy and they unlikely to offer to pay medical expenses out of the goodness of their hearts. This brings us back to where we started which is insurance companies are not inclined to pay out disputed claims yet the payment of these claims cannot be later used against them at trial.

Collins & Collins, P.C.
Albuquerque Attorneys

FISA, the Foreign Intelligence Surveillance Act of 1978, was originally passed to allow surveillance of communications between foreign powers, foreign intelligence agencies, and their agents. Since 911, FISA has been greatly expanded through various amendments including the Patriot Act. The expansion of FISA allows virtually unfettered governmental monitoring of online and telephone communications of American citizens.

In order to facilitate the monitoring of telephone communications, Congress passed the FISA Amendments Act (FAA) of 2008 which granted the National Security Agency (NSA) virtually unlimited authority to spy on Americans. In addition to legalizing warrantless surveillance (no need for reasonable suspicion of wrongdoing), the legislation provided for what the ACLU terms "dragnet" surveillance of international phone calls and email, again without a warrant and without any suspicion of illegal activity.

To accommodate the new surveillance powers, Congress then passed the Communications Assistance to Law Enforcement Act (CALEA) which requires phone companies to make their networks "wiretap-ready."

Many Americans accept this as a reasonable response to 911 and the threat of terrorism. Perhaps, heightened surveillance authority is justified in the post 911 world. For both those that like to see the world in black and white, it applies to good guys and bad guys equally. It applies to those that oppose the intrusions on privacy as well as to those that fully embrace it.

Most Americans spend a fair amount of time online. There are 500 million Facebook members. There are hundreds of millions of online purchases each year. There are hundreds of billions of emails sent and received by law abiding citizens. Unfortunately, the protections that the government seeks to invoke and many Americans whole heartedly embrace may expose all these law abiding citizens to breaches of privacy. These breaches may be seemingly mundane such as the recent issue with Facebook. Others may be catastrophic to both innocent consumers and to the economy as a whole.

It takes little imagination to see how this might happen. The government is now seeking to force all online platforms to make their software open to government surveillance. Basically, the government will require a "backdoor" to allow free and easy access for governmental use. Many would ask, "So what?" Fortunately, these folks do not need me or anyone else to answer that question. A simple Google search on internet privacy breaches will result in millions of results. Search again for online credit card security breaches and find millions more. Mull around for a while and ask yourself if you want a backdoor built into all your "private" online communications and purchases.

Unfortunately, the most gifted computer programmers do not always work in government. Nor do they always have benign purposes. Even those that do not mind the NSA poking around in their online activity might think twice about the 19 year old hacker prodigy doing the same. It all makes one miss the postman.

To follow the FISA Amendments, take a look at the ACLU challenges to the laws. A visit here might open your eyes to the problems with the FISA Amendments while also shedding some light on the value of the ACLU's work, which is widely misunderstood and regretfully much maligned.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

Immediately following any personal injury accident, it is important to document all of the particulars surrounding the event, as well as preserve any evidence that can support your claim. Time has a way of eroding these details if left to memory several weeks later, so write down the details at your first opportunity. If you are unable to preserve this evidence due to the extent of your injuries, obtain the help of a family member or friend.

Transport by ambulance or other emergency medical personal will create a good record of medical treatment related to the accident. However, if you were not taken by ambulance, be sure to follow up with your health care provider as soon as possible. This will insure formal documentation of your injuries by a third party. Be sure to photograph any visible injuries without delay, as they can change quickly over time.

Revisit the scene of the accident as soon as practical. In the case of an automobile accident, it would be helpful to visit the scene at the same time of day on the same day of the week as when the accident occurred. Make note of the traffic conditions, traffic controls and road conditions. Take photographs of the area for those who may not visit the scene in person.

In the case of a slip and fall or other liability type claim, return to the scene as soon as you are able. Repairs or improvements are typically made quickly to prevent further liability. In addition, other conditions can change rapidly such as icy or slippery walkways. If possible, photograph the areas, dangerous conditions or obstacles that caused the accident.

Identify any witnesses to the accident at the time of the accident particulaly those that were not included in a police report or when a police report was not prepared. They may have seen or heard things that escaped your attention. In addition, their testimony carries far more weight than yours in case there are disputed facts. You will want to contact witnesses promptly, as memories have a tendency to fade and people frequently move.

Continue to take notes as you recover. These notes can include the effects the accident has had on your daily life, as well as the pain and limitations you have had to face. You may also want to document your mood, including any anxiety or depression issues, and sleep disturbances.

Good record keeping will ease some of the stress you feel when working through a personal injury claim to its resolution. Taking the steps necessary to preserve evidence and document your injuries and damages is key to a successful outcome in your personal injury claim.

Related Reading:
Evidence of the Plaintiff's Criminal Past in Personal Injury Cases
Past and Future Driving Evidence: Limited Admission in New Mexico Auto Accident Claims
Personal Injury Contingency Fee Arrangments Essential to Justice System

Collins & Collins, P.C.
Albuquerque Attorneys