One day I was driving on I-235 and a large digital traffic condition sign flashed a warning, “Drug Task Force Auto Stop Ahead - Be Prepared to Stop.”. There wasn’t any checkpoint ahead, it was a bold face lie by law enforcement; but on the overhead pass behind me was a law enforcement officer operating a video camera recording suspicious behavior like tossing something out the window or attempting a u-turn on the Interstate. Recognizing what this was I immediately rolled down my window and saluted them. In a way it was funny, in a constitutional sense not so funny. They caught several people and then had to promptly dismiss all the charges. Why? Because under our constitutional form of government, creating fears in citizens is not a permissible tool of law enforcement. Maybe in some communist country this is acceptable, but not in America.
This same type of liar's poker has been going on in workers’ compensation cases for the better part of seventeen years.
Decision link - Ruling On Petition For Declaratory Order, Oct. 23. 2012
Here are the legal underpinnings
In 1995 the Squealer Feeds vs Pickering, 530 N.W.2d 678 (Iowa 1995) case was decided followed by the establishing of agency policy set out in the Ramirez vs. Riverview Care Center, File Nos. 1243830, 1253740, 1253741, 1253742, 1253743 (App., August 14, 2002) and Hoover vs Iowa Department of Agriculture, File No. 529205 (App., April 30, 1991) opinions. Those cases created a new policy about surveillance video tape. No defendant would have to disclose they had or didn't have video surveillance of the injured worker until after the worker's deposition had been taken. In essence they were officially being granted a waiver from discovery. This was the official recognition there are two sets of rules for discovery. Let's look at what the Iowa District Courts have ruled in situations with similar issues.
Years ago I represented a young woman who was being harassed by a bank executive. After she told me her story I instructed her to record any further telephone calls so we would have irrefutable evidence of what was going on. She did and after filing suit the Iowa District Court ruled we had to produce the audio tape before the bank executive was deposed. The court reasoned no party has the right to time, or delay the production of evidence to suit itself. The rules of civil procedure are there for a reason and we weren't going to be allowed to change the rules to fit our case. We produced the tape and after deposing the bank executive settled the case for a reasonable sum of money. For years I’ve been asking myself why the Iowa Workers’ Compensation Commission has been allowing the opposite. And mind you this wasn't a Chris Godfrey rule, this was Republican appointees who baked this discovery fiction to permeate the system. What’s good in district court should also be the rule for discovery in the agency. But it wasn’t and the defense bar took every opportunity to game the system. Let's see how the defense bar used this advantage in a not-so-honest way.
Here is the rub
The defense bar read these decisions as permitting withholding of surveillance footage until after the claimant’s deposition was taken. But in reality the defense never had surveillance, they learned to vaguely answer interrogatories (answers given under oath) to give an impression maybe they had surveillance video. They were gaming the system in order to create fear in law abiding citizens for an advantage similar to law enforcement on I-235. Essentially they were being permitted to use fear as an effective law enforcement tool in workers' compensation cases. This isn't just dishonesty lawyers, it was official dishonesty. Two wrongs were being said to make a right.
Disrespecting the Practice of Law and the Court System
What the defense was doing was gaming-the-system with fake surveillance. A new day has dawned at the Agency and a new rule. A declaratory ruling was recently issued and with the recent Agency Declaratory Order filed on October 23, 2012 this game of fear and intimidation is finally over in Iowa. Thank you Commissioner Godfrey and all the lawyers who particpated in challenging this tactic borrowed from the KGB playbook.
It’s Never Right to Assume they are All Cheaters
So what’s wrong with making injured people who seek benefits think they have been caught faking?
I tell my clients it’s never right to lie or to exaggerate. That is unacceptable when claimants seek workers’ compensation benefits. It’s also not right for lawyers to demean parties and witnesses by exaggerating what evidence exists. This is a court system, a system of justice one that deals in truth. We are supposed to be professionals, officers of the court that treat everyone coming before the court system with honesty and respect. Gaming parties with phony answers to interrogatories claiming maybe we have surveillance and maybe we don’t is about as disingenuous as it gets. Frankly it's a lie and the use of intimidation to gain a financial advantage.
Is there a Bigger Issue at Stake?
Absolutely there is a bigger issue at stake. If you want to know why people are so angry with the legal profession and the court system you need only look at how it’s operating from their standpoint. When they see lawyers lying, exaggerating and faking a claim that evidence may exist they are demeaned and become angry with us and the system. After all they didn't ask to be injured. From their standpoint they have to ask why not exaggerate, you do?
It’s was not right for this charade to have gone on as long as it did and I’m glad to see Commissioner Godfrey finally put it to rest.
The Bottom Line
The defense bar is no longer permitted to answer interrogatories with phony claims of surveillance; either you have it or you don’t and if you do it has to be produced when requested. And know this; if it shows the claimant is faking it, I’m out, the last thing I want is to waste my time on a case with a lousy set of facts. So your assumption that the Claimant’s bar is just in it for the money is incorrect. Some of us are in it for the truth.
I believe surveillance is an effective tool to weed out those who are lying or exaggerating their claim. It should be allowed and it is, but not at a cost of lying or exaggerating. This ruling is spot on.