September 19, 2020

As lawyers begin using drones, regulatory issues persist

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drone-Article-201412051215By Charles Toutant, From New Jersey Law Journal
For the lawyer who has everything, is a drone the next must-have item? Unmanned aerial vehicles can take high-quality video and still pictures with unrivaled convenience and maneuverability, but using one to collect evidence comes with thorny regulatory issues.
The insurance industry has begun to use drones when reviewing claims, so it’s not hard to understand why lawyers would want to follow suit. But while the Federal Aviation Administration develops rules for commercial usage of drones, their present legal status is unclear, lawyers said. As a result, any lawyer seeking to admit drone photos into evidence would likely be accused of obtaining them illegally.
In addition, the public may associate drones with spying or warfare—so that jurors might be suspicious of a lawyer who has one.
The Teaneck, N.J., personal injury firm of Davis, Saperstein & Salomon has had a drone for about four months, deploying it to take high-definition video and still pictures of accident scenes. The firm decided to lay out $1,500 for a four-engine drone and another $1,000 for an insurance policy on it after encounters with insurance companies that used them to evaluate claims, the firm’s Samuel Davis said.
Davis Saperstein has used a drone to examine the wreckage of a fatal house fire and to examine the site of a pedestrian-vehicle accident in a shopping center parking lot, among other things. It provides the ability to look down at a subject and quickly and conveniently gather evidence that would otherwise be inaccessible or difficult to obtain, Davis said.
Photos and video from the drone can help an accident reconstructionist provide a better report and can aid in his own analysis and understanding of a case, Davis said. In a case stemming from a motor vehicle accident, the drone provides a better viewpoint for understanding the role of issues such as lighting or traffic patterns, he said. Without a drone, obtaining the same type of views of an accident site would require renting a boom truck and obtaining a court order to shut down the intersection, he said.
“I always went out to the scene, but now when I go out to the scene I feel I have tools that are cutting-edge. I’m reading how the carriers are deploying these unmanned aerial vehicles in their investigations. My prediction is, it’s not going to be long before, on both sides of the aisle, there are going to be drones launched to gather the best evidence you can gather,” Davis said.
Davis’ firm uses a three-member team whenever it launches the drone—a fellow attorney who is a licensed pilot guides the craft by remote control, another team member wields a remote control that operates the camera and Davis himself serves as field commander, overseeing its launch and return to ground. The firm’s drone is guided by satellite coordination and has a 15-minute battery life, but automatically returns to its launching point before running out of power. Although drones can travel a long distance from their operator, Davis Saperstein’s drone is kept in sight and at low altitude.
Piloting the drone and obtaining top-quality pictures takes practice, since it is vulnerable to cross-winds, Davis said. It also makes a lot of noise, which sometimes annoys the public, he said. As a result of such barriers to entry, he said he envisions growth in use of drones by private inspectors and other consultants, more than by law firms.
While the FAA drafts regulations for commercial use, the law concerning the use of drones for commercial purposes is unclear, said Douglas Amster, a member of the drone practice group at LeClair Ryan in Newark. As a result, any effort to admit evidence obtained by a drone is likely to generate a battle, Amster said.
“You’re in a gray area. I would venture that a lot of lawyers would not be sensitive to these issues. A lot’s going to depend on what the judge overseeing the case says,” according to Amster.
Davis said he is confident that his firm’s drone usage is in compliance with the law as it currently stands and he believes the firm will be in compliance with future FAA regulations.
Peter Sachs, a Branford, Conn., attorney and drone law blogger, said that in the absence of regulations on commercial use of drones, the FAA takes the position that their use for commercial purposes is illegal. Sachs disagrees with that position, calling it unsupported by statutes or case law. On top of that, some states, including California, Texas and North Carolina, have passed their own laws against aerial photography by drones, he said. He agrees that, in the absence of a resolution of the issue by the FAA, lawyers seeking to admit drone-derived evidence are likely to face an uphill battle, Sachs said.
“It’s difficult to claim evidence obtained illegally. Until a statute, regulation or case law says commercial use [of drones] is legal, opposing counsel could say you obtained it illegally,” Sachs said.
Davis said his firm has yet to introduce any drone photos into evidence in any of its cases, but he recognizes that some jurors might have a dim view of drones. Some adherents of the pilotless craft don’t call them drones but prefer other terms, such as unmanned aerial vehicles, or UAVs. And legal commentator Andrew Napolitano, expressing concerns about drones’ use in domestic surveillance on Fox News in 2012, said that “the first American patriot that shoots down one of these drones that comes too close to his children, his backyard, will be an American hero.”
Predicting jurors’ reactions to evidence obtained with a drone is difficult, said Beth Bochnak, senior litigation consultant with the National Jury Project/East in Madison, N.J. Some jurors might like it for its novelty value, or think the lawyer presenting such evidence is clever. But others might find it off-putting, Bochnak said.
“People mistrust lawyers, and they really mistrust personal injury plaintiff lawyers. So they may feel the man has money to burn,” Bochnak said.
Younger jurors may be more receptive than their elders to evidence taken from drone cameras, and any use for the purpose of watching people is likely to backfire, Bochnak said.
The insurance industry appears eager to adopt drones, particularly in the evaluation of high volumes of claims after a natural disaster. Allstate Insurance Co. announced Wednesday that it was part of a consortium studying usage of drones for both underwriting and claims adjustment. The company said in a statement that using drones could help provide faster payment of claims. And in October, the United Services Automobile Association petitioned the FAA for permission to use drones to process insurance claims, according to fastcompany.com.
For Davis, using a drone to gather evidence and survey accident scenes is a competitive issue.
“Clearly this aerial forensic approach gets the most compelling evidence in a cost-effective and timely manner. Knowing that insurance companies have invested heavily in this as one of their tactics, I need to make sure now and five years from now that the playing field is kept level for people who have suffered serious injuries,” Davis said.
For more on this story go to: http://www.njlawjournal.com/id=1202678210293/As-Lawyers-Begin-Using-Drones-Regulatory-Issues-Persist#ixzz3LyKaULOM

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