Jul 18, 2020

Subrosa - Stopping Fraud Before it Begins


Personal Injury staff
Ehline Law Offices and Staff.

Claims adjusters work hand in hand with insurance fraud investigators. And no attorney wants a client who lies either. But dealing with dishonest people remains a shifty, slimy part of life. Here, not telling the truth and concealing things when connected to false injury claims, can send a false personal injury claimant away to prison. Fake Injury, Worker's Comp, Disability, and Unemployment claims cost the taxpayers millions each year. And this is an issue in California, with its relatively lax crime enforcement.

Also, insurance companies tend to treat every claim as if it were insurance fraud, which is part of their culture of cynicism. Altogether, companies and taxpayers are on the hook for this public theft. This scheme hurts honest workers putting in their claims. It's a loss all around. This dishonesty is thwarted, however, when useful investigative work prevents many of these issues early on in a legal claim. And it is done in a very Perry Mason like way, using a private eye, or a gumshoe!

What is Subrosa?

Subrosa derives from an old Latin term meaning under the rose. The idea is that private surveillance might be able to determine the cause of such a false claim. In some cases, it can be done through secret filming or audio recording. Insurers are known to sneak hidden cameras and film plaintiffs as they conduct day to day activities, like going to the gym when they are supposed to be in bed. Insurance companies use this evidence later to discredit the plaintiff.

Subrosa helps insurers distinguish between several significant differences in the discussion. One can be whether or not a person is bothered by performing a task or cannot do it at all. A variety of evidence makes it clear to the court or other attorneys whether or not the claimant lied. The defense attorney often works with an insurance company's private investigator, collecting information on the claimant. This investigation involves digging up info on their daily routine, hobbies, and other work. All of this can add up in bills but is a valuable tool.

Moreover, any evidence of insurance fraud is going to be shared with local, state, or federal law enforcement. So most tort lawyers don't want a case like this, and they will drop the client's case like a hot potato upon seeing evidence of a client's falsehood. As can be seen above, Subrosa is a powerful tool in the covert discovery process. Trustworthy lawyers will demand that their clients level with them about all aspects of their case and that they agree not to violate a doctor's orders, etc.

But sometimes plaintiff's lawyers will do separate investigations, and discover incriminating images and videos of their client on social media, etc. Obviously, it will be assumed the other side already has this, and possibly more. If there is no way to explain it away, clients may receive notification that their lawyer cannot help them any longer. And this is called a "case reject letter." The moral of the story is that the truth will set you free. Don't lie. Your lawyer will drop your case, and you could go to prison. Moreover, Subrosa investigations are real, and they can damn you for life. If you want to learn more about when you can and cannot film in public, go here.

Related Issue - The Video Recorded Deposition.

Unlike Subrosa, which is usually a secret video surveillance of the plaintiff, there are also legal forms of video surveillance, sanctioned by the courts. Video has revolutionized courtroom proceedings, allowing every sound and emotion to appear clear as day to both judge and jury. The power of recording a deposition cannot be underestimated. It can serve as a vital portion of your case. The ability to properly conduct a statement recording can make an impact at every stage of your proceedings and could be the make or break moment.

For attorneys, there are several critical differences between traditional forms of court conduct, even if they seem subtle.

These can include:

  • Lawyers must make sure that they correctly engage any witnesses. Specific actions, such as heated arguments with those in the case, can detract from the proceedings at hand and turn judge and jury against you.
  • The tone of voice, body language, and non-verbal communication are all amplified by this type of case. Coming across as condescending, aggressive, or without tact can help sink a case.
  • Preparation is key. Making sure that all documents are in the correct order is critical. So make sure the proper passages remain highlighted. All of this makes a difference. Practicing what you will do can be vital-- just as on TV or radio, stammering, silence, or confusion can help destroy your point.

Are There Special Challenges For Injury Victim Deponents?

In some injury cases, in addition to Subrosa, the defense may attempt to video the depo of your client. A few of the challenges faced are clients with neck and torso injuries and movements they make that may cause a juror to feel the damages are less significant. If a client is on pain meds, he or she may appear not to grimace from pain when they should.

So, for example, when they are handed a document, they should be wincing in pain, right? These tips also can be applied to countersuing defendants, so pay close attention.

Another unique situation has to do with the infamous two-way mirror deposition. Some slick defense firms will send out a depo notice, and notice that it may be recorded.

  • But when the deponent and attorney arrive, there is a room with an innocent-looking mirror, picture, and a conference table.
  • In most videotaped depositions, the person taping the depo is in the same room physically.
  • So the attorney knows when the client and attorney are on tape.

Be Careful, You May Be Revealing Strategy.

Always read the notice, and never assume you are not on tape.  The attorney could be revealing the strategy, having confidential conversations. Plus, the deponent could be picking up heavy folders and objects and recorded all the time.

Also, while visiting the defense attorney, the plaintiff's attorneys should ask if they are being recorded. And while at the defense firm's offices, if you wish to speak to your lawyer, step outside and whisper. Defense attorneys may use a two-way mirror, so you don't notice the videographer.

  • Your attorney should demand to see the video recording specialist's credentials. Also, the lawyer should demand the camera be off when the deposition is not in progress.
  • Otherwise, you may end up with every little thing taped so long as you are in the conference room.

Sometimes the defense will invite you to lunch in that same room with your client. So even during recorded breaks, you're likely on tape. Imagine having snippets of that tape used against you. No thanks.

While these changes and challenges may seem daunting, with proper practice and a helping hand, you can have precise and expert presentations for the court. These can become a great asset to your firm and one that your clients will appreciate.

The reputation gained by the proper use of these methods is another edge that you may need in court. Countering Subrosa by making sure your client is aware they are probably being watched is one of the best ways to protect the plaintiff's case. Sometimes at video depositions, the deposing party will place the video camera behind a two-way mirror. Often, defendants have been known to leave the camera rolling even when the parties are not taking testimony. For example, sometimes, the parties will break for lunch, and defense counsel will invite the plaintiff and their counsel to have lunch in their surveilled room. Beware, even if it's not legal, you are probably being taped. And it's your fault.

To learn more about Subrosa and other legal methods of video surveillance, call Ehline Law Firm Personal Injury Attorneys, APLC at (213) 596-9642.

Citations:

How to Conduct an Effective Sub Rosa Investigation

Insurance Fraud Investigation and Sub Rosa – ORISR

Insurance Information Institute, “Background on: Insurance fraud,” November 14, 2018