Litigation preparation isn’t about overwhelming your defense attorney with binders of paperwork. It’s about collecting relevant, credible, and persuasive information early—while the details are fresh and the opportunity for impact is still strong.
There are three key tools every employer should be using to build a defensible case: witness statements, surveillance, and social media evidence. These three, when used properly and in coordination with your legal team, can radically shift the trajectory of a claim.
1. Written & Recorded Statements: Lock in the Facts Early
The moment an injury occurs, time becomes your greatest asset—or your worst enemy. Getting written or recorded statements from the injured worker, witnesses, and supervisors as soon as possible is absolutely essential.
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Why? Because people forget. Stories evolve. And in some cases, people realize that the narrative might be worth more if it’s revised.
Defense attorney Brad Bleakney shared in a recent training session that one of his favorite tactics is putting a contradictory statement in front of a witness on the stand. If their trial testimony doesn’t match what they initially said—especially when it’s signed and timestamped—he’ll ask, “Were you lying then, or are you lying now?”
That kind of moment devastates credibility. And in litigation, credibility is often the case.
It’s not just about the injured worker either. Locking down the supervisor’s version of events is just as critical. What did they observe? Were there any prior complaints? Did the employee report the injury right away or hours later? These details set the foundation for a strong defense—or reveal red flags that need to be addressed.
Action Step: Build a post-injury response protocol that includes collecting signed statements within 24–48 hours. Provide templates and training for supervisors so they’re prepared in the moment.
2. Surveillance: A Picture Is Worth a Thousand Words
Surveillance is often misunderstood. It’s not about playing “gotcha” with every injured employee—it’s about capturing objective, visual evidence that can confirm or contradict claimed limitations.
Sometimes that comes in the form of security camera footage showing an injury that didn’t happen the way it was described. Other times, it’s a video of an employee leaving work uninjured and laughing with a coworker, only to file a claim later that day.
There’s also video reenactment. When an injury mechanism doesn’t make sense, a short clip showing what would need to happen to produce that injury can be a powerful courtroom exhibit.
Surveillance isn’t limited to the accident itself. If an employee is claiming they can’t lift more than 5 pounds, but video shows them carrying furniture over the weekend, that matters.
The key is collecting and preserving this evidence before it disappears. Many systems overwrite video in 36–72 hours. If you wait until litigation begins, the footage is often gone.
Action Step: Train your teams to retrieve and save relevant video within 24 hours. If you suspect fraud, consult your attorney before launching external surveillance to ensure it’s handled lawfully.
3. Social Media: The Oversharing Goldmine
We live in a world where people post everything—what they ate, where they went, and how they’re feeling. Injured workers are no exception.
Photos from a vacation, lifting a child, running a 5K—if those posts contradict the limitations being claimed, they can be invaluable. Defense attorney Stuart Colbert noted that younger workers, in particular, often share far more than they realize.
But it’s not just about catching fraud. Social media can provide context about someone’s activities, motivations, or emotional state. Even posts expressing fear about being fired or confusion about the process can inform how you manage the claim.
There’s one caveat: this information needs to be gathered early. As soon as a claim becomes contentious, social media profiles tend to go private or get scrubbed.
Action Step: Incorporate social media reviews into your initial investigation process. Use experienced investigators and be sure to operate within legal boundaries—no fake profiles or unethical behavior.
Why It All Matters: Win the Cases You Have to Fight
Litigation preparation is about more than defending yourself in court. It’s about sending a message—to your injured workers, to plaintiff attorneys, and to the court.
When you’re organized, proactive, and prepared, you build a reputation that discourages frivolous claims. You also give your legal team the tools they need to succeed. When asked, “What happened here?” they can respond not with guesses, but with evidence.
As Colbert summed it up: “Investigate early, investigate fully, and be ready to try every case.”
That reputation alone can reduce your litigation volume. But when a case does go to court, you’ll be ready—with facts, footage, and Facebook posts to back you up.
Michael Stack, CEO of Amaxx LLC, is an expert in workers’ compensation cost containment systems and provides education, training, and consulting to help employers reduce their workers’ compensation costs by 20% to 50%. He is co-author of the #1 selling comprehensive training guide “Your Ultimate Guide to Mastering Workers’ Comp Costs: Reduce Costs 20% to 50%.” Stack is the creator of Injury Management Results (IMR) software and founder of Amaxx Workers’ Comp Training Center. WC Mastery Training teaching injury management best practices such as return to work, communication, claims best practices, medical management, and working with vendors. IMR software simplifies the implementation of these best practices for employers and ties results to a Critical Metrics Dashboard.
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