“A picture is worth a thousand words” is a saying well-known in both layman’s circles and in the law.  In court, videotaped evidence can speak volumes.  Because of the importance of such evidence – whether in the form of deposition testimony, party/witness surveillance, or expert-related experiments/testing – courts need to be careful and consistent when considering its admissibility.  Just this past March, the Texas Supreme Court provided guidance to litigators and trial judges alike for the admissibility of videotaped surveillance of plaintiffs in personal injury suits.

In Diamond Offshore Services, Ltd., et al. v. Willie David Williams, Williams, an offshore oil rig mechanic, sued his employer for back injuries he sustained while allegedly working alone on a heavy piece of equipment.  Williams had two back surgeries in the thirteen months following his work-related injury.  Defense counsel secured videotaped surveillance of Williams prior to trial and approximately four years after Williams’ second back surgery.  The surveillance tape was approximately an hour in length and showed Williams performing various bending, lifting, and work activities (in contrast to what Williams and his experts testified he could not do).

The trial court (without viewing the videotape) first considered its admissibility in a pre-trial hearing and ruled that the defense could possibly use it for impeachment purposes at a later point in the trial, should it be warranted by the facts and circumstances.  The defense offered the videotape at multiple points during trial for both substantive and impeachment purposes but each time it was offered, the trial court just referred to its pre-trial ruling and never allowed it into evidence.  The jury returned a $10 million verdict for Williams, $4 million of which was  for pain and suffering.  The Houston Court of Appeals affirmed the exclusion of the videotape with one judge dissenting, claiming that it went to the heart of Williams’ damages.

The Texas Supreme Court first decided that the trial court abused its discretion in ruling on the pre-trial admissibility of the videotape without viewing it.  After viewing the one-hour videotape, the Texas Supreme Court further concluded that the videotape should not have been excluded under the Rule 403 balancing test of the Texas Rules of Evidence, weighing the probative value of the evidence against its prejudicial effect.  Finally, the Texas Supreme Court held that the trial court’s abuse of its discretion in failing to view the videotape and refusing to admit it into evidence constituted harmful error that resulted in an improper judgment.


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Jonathan M. Spigel is a Shareholder and member of the Cowles and Thompson Tort Litigation Practice Group.