A photograph of the crash scene. Surveillance footage. A recording. A text message. A video showing what happened in the moments before an injury.

There is something inherently persuasive about being able to tell a jury: You don’t have to take my word for it. Look for yourself.

Artificial intelligence is beginning to complicate that assumption.

Today, readily available technology can create realistic photographs of events that never happened, clone a person’s voice to say words they never spoke, alter existing video, and generate entirely fictional footage that may appear authentic to the human eye.

For trial lawyers, that creates an entirely new evidentiary problem: What happens when seeing is no longer believing?

Deepfakes Are No Longer Science Fiction

The term “deepfake” originally referred primarily to manipulated videos, but today the concept is much broader. AI can be used to fabricate or manipulate photographs, videos, voices, social-media content and other forms of digital evidence. There are sophisticated creations which are distinguishable from “cheap fakes” made with less advanced technology and “shallow fakes,” where genuine content is manipulated—for example, by changing its speed or taking it out of context.

Now, creating convincing material no longer necessarily requires sophisticated technical knowledge.

A deepfake can be created using only a couple photographs and clips of someone’s recorded voice. The generated deepfake can be so convincing it can deceive family members. That should get the attention of anyone involved in litigation.

Imagine receiving an audio recording supposedly capturing a driver admitting he was texting immediately before a collision.

Or surveillance footage appearing to show an injured plaintiff lifting something heavy.

Or a photograph supposedly showing the condition of a property immediately before someone fell.

Five years ago, the primary question might have been: What does the evidence show?

Now it may be: Is this evidence even real? Is it AI evidence?

Personal Injury Cases May Be Particularly Vulnerable

Modern personal injury cases are increasingly built around digital evidence.

Dash cameras, surveillance systems, Ring cameras, cell-phone photographs, text messages, social-media posts, vehicle data and electronically stored information can become critical pieces of a case.

AI creates risks on both sides of the courtroom.

A dishonest litigant could theoretically manufacture evidence supporting a claim. But fabricated evidence could just as easily be used against an injured person—a supposed social-media photograph, altered surveillance video or fabricated recording could create an entirely false picture of someone’s physical abilities, activities or statements.

Lawyers now need to begin thinking differently about digital evidence from the moment a case begins.

The Original File May Matter More Than Ever

A screenshot is not necessarily the same thing as the underlying evidence.

Experts identify several warning signs lawyers should consider when evaluating suspicious digital evidence: evidence that seems almost too perfect, a poor or unexplained chain of custody, an inability to produce the original file or device, and the absence of native files and associated metadata.

That makes preservation increasingly important.

If a photograph matters, preserve the original photograph.

If a video matters, preserve the original video file.

If something was recorded on a phone, preserve the phone.

If surveillance footage matters, obtaining the original footage directly from the source may become much more important than relying upon a forwarded copy, screenshot or screen recording.

The history of a digital file—where it came from, who possessed it, how it was transferred, and whether its underlying metadata remains intact—may eventually become almost as important as what appears on the screen.

Courts Are Already Wrestling With the Problem

In United States v. Bell, video from a Ring surveillance system contained unexplained gaps, including one exceeding 22 minutes. The person whose system generated the footage was unavailable to testify, and questions existed about how the video had been obtained and transferred. The defendants argued that the footage had been tampered with.

The appellate court in Bell ultimately concluded there was sufficient authentication and treated the gaps as an issue affecting the weight of the evidence rather than its admissibility. But a dissent raised a much larger concern: traditional methods for authenticating video evidence were developed decades before AI-generated video and modern deepfakes became possible. That tension is likely to become increasingly important.

Historically, disputes about photographs and videos frequently centered on whether the evidence fairly depicted what it purported to show.

AI introduces another possibility altogether: the depicted event may never have happened.

Even AI May Not Be Able to Tell Us What AI Created

Perhaps the most surprising part of this issue is the limitation of today’s deepfake-detection technology.

Experts explain there are many different AI detection tools. However, even when using these AI detection tools, different conclusions can be reached. Some AI detection tools will identify a piece of information as AI generated, others identify it as human-generated, and still others cannot decide.

In other words, asking another AI program whether something was created by AI is not necessarily going to solve the problem.

Instead, determining authenticity may require looking at the entire body of evidence: the original device, metadata, chain of custody, surrounding circumstances, inconsistencies within the recording, and potentially testimony from qualified experts.

Why Lawyers May Have to Address Authenticity Much Earlier

Waiting until trial to challenge suspicious evidence may be too late.

Questions concerning AI-generated evidence need to be identified during discovery rather than on the eve of trial. Resolving an authenticity dispute could require examination of the original device, additional discovery, expert analysis, protective orders and even evidentiary hearings.

And if the original device suddenly disappears, the dispute can transform from an authentication problem into a preservation or spoliation problem. Metadata may also be critical—and may disappear depending upon how a file is copied, transmitted or generated.

For personal injury lawyers, that means evidence preservation cannot be an afterthought.

The Other Danger: The “Deepfake Defense”

There is another side to this problem that may ultimately be just as significant.

As fake evidence becomes easier to create, genuine evidence becomes easier to deny.

A person confronted with an authentic recording can simply say: “That’s AI. I never said that.”

Someone shown in an unfavorable video can argue: “That’s a deepfake. I was never there.”

This phenomenon has sometimes been called the liar’s dividend: the existence of convincing artificial evidence gives people a new way to attack genuine evidence.

That means lawyers will increasingly need to be prepared not only to expose fake evidence, but also to prove that real evidence is real.

If you’re a lawyer concerned about AI evidence, the Sedona Conference has a great digital asset which provides more information to guide your analysis which can be found online here.

If you’re a potential client and would like to read more about my firm, check out my profile here.

What Should You Do With Important Digital Evidence?

For an injured person, the practical lesson is surprisingly simple:

Don’t alter the evidence. Preserve it.

Don’t crop an important photograph and delete the original. Don’t edit a video before sending it to your lawyer. Don’t rely solely upon screenshots of important messages. Don’t discard an old phone simply because you purchased a new one.

And certainly don’t use artificial intelligence to “improve,” reconstruct or recreate evidence.

Give your attorney the original material whenever possible and explain exactly where it came from.

The technology surrounding evidence may be changing rapidly. The fundamentals of a strong case are not.

Preserve the evidence. Document where it came from. Investigate it carefully. And never assume that something is true simply because it looks real.

At Salter Law, we believe serious personal injury cases require more than collecting evidence—they require understanding it. As technology changes the way photographs, videos, recordings and electronic information are created and challenged, careful investigation and thoughtful litigation strategy matter more than ever.

If you’ve been seriously injured in Louisiana and have questions about the evidence surrounding your accident, contact Salter Law to discuss your case.

The Totality of the Circumstances Test

Whether a driver was intoxicated at the time of a collision, and whether the driver’s intoxication was a cause in fact of a collision, are inherently factual issues which are decided by examining the totality of the circumstances on a case-by-case basis. You may think you need a toxicology test to prove intoxication, but that is not true in a civil case. In Louisiana, toxicology tests and expert testimony are not required to prove intoxication. Circumstantial evidence of intoxication is sufficient for a plaintiff to carry their burden of proof in a civil matter.

Courts Applying the Totality of The Circumstances Test to Address Intoxication in Civil Lawsuits

In Owens v. Anderson, the Fourth Circuit Court of Appeal upheld a finding of intoxication of a defendant driver based on circumstantial evidence without the benefit of toxicology tests. In Owens, the court noted there was no blood alcohol test evidence available because the driver fled the scene. The court inquired, “Does this mean that all an intoxicated driver need to do to avoid 2315.4 liability is to successfully flee the accident scene? We think not.”

The Owens court found that blood alcohol tests are not the only way in which intoxication can be established in a civil case. The triers of fact can look to the totality of the circumstances. In Owens, the defendant driver swerved before the collision; he smelled of beer; he was seen drinking from a beer can after the collision; and he left the scene because he did not want the police called. The court stated, “these are sufficient facts on which the trier of fact could have found intoxication.

In Lacoste v. Crochet, the Fourth Circuit Court of Appeal affirmed the totality of the circumstances test as noted in Owens to uphold a finding the defendant driver was intoxicated. In Lacoste, witnesses testified the defendant driver was stumbling, smelled of alcohol, and did not act “normal”. The witnesses also testified the defendant driver did not want the police called because the defendant driver advised he had a prior DWI arrest and feared he would be taken to jail. Because the defendant driver left the scene, there were no toxicology tests.The appellate court noted the trial court considered the witness testimony and found it credible and held “under the circumstances, we do not find manifest error in the trial judge’s conclusions that [the defendant driver] was intoxicated and that his intoxication contributed to the accident.”

Intoxication Must be a Cause-in-Fact of the Resulting Injury

Just because someone is intoxicated and causes a collision does not mean you can automatically recover. To establish a claim for punitive damages, you must also establish that the intoxication is a cause in fact of your injury.

When determining whether intoxication existed and whether it was a cause-in-fact of a collision, the Fourth Circuit Court of Appeal in Drouant v. Jones, noted “[t]he question is whether, in light of the record as a whole, the trial court’s finding was reasonable. Also, we have held in prior cases that, even absent a positive alcohol test, a driver’s intoxication can be proven by the circumstances.” In Drouant, the court affirmed the trial court’s determination finding the driver was intoxicated, noting it required an evaluation of credibility and the factual circumstances present based upon the record as a whole.

The cause-in-fact requirement was addressed by the First Circuit Court of Appeals in Flowers v. Miller. In Flowers, during a bench trial the judge “made a factual determination that [the defendant driver] was impaired at the time of the accident, but found that this impairment was not a cause-in-fact of his attentiveness, which actually caused the accident.”

In Lyons v. Progressive Insurance Company, the Fourth Circuit Court of Appeal affirmed an award of punitive damages against an intoxicated driver who was leaning over, searching for a compact disc at the time of the collision. The fact that the driver was leaning over searching for a compact disc shows that even if an intoxicated driver is distracted by an object inside the vehicle, the intoxication can still be a cause-in-fact of the collision. 

Punitive damages are available to those hurt by drunk drivers

Louisiana law recognizes there are additional damages available to those hurt by an intoxicated defendant. La. Civil Code Article 2315.4 provides:

Wanton and Reckless Disregard

 The Fourth Circuit Court of Appeal in Bourgeois v. State Farm Mutual Automobile Insurance Company expounded upon the third element of a plaintiff’s punitive damages claim. The Bourgeois court noted, “The element necessary to recovery under La. Civ. Code art. 2315.4 is wanton and reckless disregard for the rights and safety of others. Thus, no evidence of a specific action by the defendant is necessary. In order to prove “wanton and reckless disregard,” the plaintiff is required only to prove a “general state of mind” and a “conscious indifference to consequences.’” These findings are normally left to the fact-finder, such as a judge or jury.

Have you been hurt by an intoxicated driver?

Intoxication can occur in many ways. Substances are always evolving. If you believe that you were in an accident with a drunk driver or an intoxicated driver, contact me today for your free consultation. Time is of the essence in these cases because preserving evidence can make or break a case. Contact Salter Law today to learn how you can be made whole after being injured by someone who was intoxicated, or read more about drunk driving accidents here.

When people have been in an auto accident and their vehicle has sustained damages, normally that is the first concern. If you’re like most people, you need transportation, and when your vehicle is wrecked or damaged, it’s usually a headache to deal with. 

You may need to get to and from work, bring kids to school, or get groceries. We heavily rely on our vehicles. When our vehicles are damaged in a wreck, they can be repaired or they can be considered a total loss. If your vehicle has been involved in a wreck and it sustained damage but is not a total loss, the at-fault driver likely owes you what we call “diminished value.”

What Is Diminished Value?:

What is diminished value? Diminished value is the difference between the pre-loss value and the post-loss value of a vehicle after a collision. Generally, the proper measure of monetary loss is the difference between the pre-loss fair market value of the vehicle and the post-loss fair market value of the vehicle.

Diminished value is not determined at some future date. Nor does it require you to sell your vehicle. Rather, it is designed to compensate you, and you are owed diminished value even if you decide to keep your vehicle after it has been repaired. You are not required to sell your vehicle to make a diminished value claim. Diminished value is the automatic loss in value from a collision. 

Almost every vehicle that has been in a wreck will have some form of inherent diminished value. It has been estimated that 55% of consumers would not buy a car that had been in an accident and 81% would not have a car that had been in a wreck unless they were given a large discount. However, survey results from appraisal experts show the stigma may be even higher than reported. 

How Diminished Value Is Calculated:

How do you calculate diminished value? There are many factors to take into account when determining diminished value. These factors, include but are not limited to: 

1. Year, make and model of the vehicle; 
2. Type of damages and the extent of the damages incurred to the vehicle; 
3. The mileage at the time of the wreck; 
4. Whether the vehicle has been in any other prior accidents and the extent of the damage the vehicle incurred in those accidents; and 
5. Comparable vehicle pricing 

Considerations are given to concerns which a buyer may have if you were to sell your vehicle. For example, if the buyer knew the vehicle was in a severe accident, it is likely the buyer would be willing to pay less for the vehicle. This is what we mean when we say diminished value. 

How Diminished Value Works in the Real World:

It is commonly known auto body damage will permanently and severely stigmatize all newer vehicles. After your vehicle has been in an accident and has been repaired, this will likely show up on a Car Fax/Wreck check. These type of reports may not identify the extent of the accident/repairs stigmatizing the vehicle. How does this come into play in the real world?

Experts have found the largest resale market is the dealer trade in-market. Once the vehicle has been inspected by the dealer for a trade-in value, the dealer will likely be able to notice numerous things including that when a vehicle is manufactured the vehicle is installed with vehicle identification numbers on the majority of the body parts. In addition, vehicles with structural and/or auto body related damage usually cannot be resold as a “Certified Use” or “Certified Pre-Owned” vehicle and thus affects what a dealer is willing to pay you for it. 

Click here to read our article on more information about how a wreck can affect the value of your vehicle (insert hyperlink to other blog post: How a Wreck Can Affect the Value of Your Vehicle)

How Salter Law Gets the Most for Diminished Value Claims:

I do not handle diminished value claims alone. However, I do always handle diminished value claims for my clients who are injured. This often goes hand in hand because my clients get injured in car accidents and then their vehicles need to be repaired.

When I make a diminished value claim on behalf of my clients, I always engage an expert. There are many certified appraisers who can issue reports which will help to bolster your diminished value claim. I also work with the insurance company to make sure you are fairly compensated for your diminished value claim. To do that, I must have all repair records from the body shop including the costs of repairs and photographs of the damage to your vehicle. 

If you were injured in a wreck in Louisiana, contact Salter Law today for a free consultation to discuss your injuries and potential diminished value claim.