Diaries and Personal Injury Cases
Many people are familiar with the basics of personal injury cases. They’ve heard about “pain & suffering,” and believe that the party at fault should pay their medical bills. But beyond that, there are many things people do not know. As we’ve talked about in our blog before, the insurance company knows much more about the process than you do, and they will use it to your disadvantage. One thing we experienced lawyers understand is how to prove pain and suffering and loss of a normal life to a jury, so that it resonates and turns into compensation for our client. Believe it or not, keeping a diary following a personal injury is a key way to do this.
Why Keep a Diary
Even if you are in a relatively minor car crash and only see a doctor or physical therapist for a month or so, by the time your lawyer obtains all the medical records and bills, submits them to the insurance carrier, and there is an offer on the table, it is months after the crash. Do you remember how many times you mowed your lawn last year or how many times you shoveled last winter? Exactly! Since most of us are so busy we can hardly remember what is for dinner or what we have to pick up at the store on the way home tonight, we can hardly be expected to recall specific limits on our activity from months, or years ago. If a lawsuit is filed, the earliest it will go to trial is a year or year and a half after filing. In complex cases, this could be as much as 4 years or more after the actual incident occurred. How can you remember your medical treatment and limits on your activity from that long ago? A diary is a great way to do this!
What to Keep in My Diary
I tell my clients to keep it simple. Some prefer elaborate Excel spreadsheets, some like T-Charts, while others like to handwrite theirs. Emails work too. Whatever your preferred method or format, the things I tell everyone to include is the following:
Things you cannot do at all following the incident (and for how long you could not do them).
Things you can do but which you experience pain or are limited in how well or for how long you can perform them.
Keep a note of the general chronology of your doctor visits, so, if you are asked at a deposition 2 years later whether you had an MRI of your shoulder before or after your son’s wedding, you’ll remember, or at least be able to piece it together prior to the deposition.
The general rule is to focus on activities of daily living (ADLs). Think about a woman with a rotator cuff tear, who, following surgery, is unable to apply mascara, put her hair in a ponytail, or drive a stick shift vehicle. Think about the man with the back injury who, despite having received the dream trip to St. Andrew’s golf course in Scotland from his wife, cannot golf at that sport’s birthplace due to his injury. This is what resonates with ordinary people, because that is who will be on the jury!
What NOT to Keep in My Diary
Do not post things that have nothing to do with the case. Do not talk about extraneous things or things that might prove embarrassing if someone else did see the diary.
Who Sees This?
Generally, only you and your lawyer will see this. There is a trend now where defense attorneys are now seeking diaries during the discovery process. However, most judges are firmly against this as of this writing. Be sure to discuss the pros and cons with your lawyer!
About Social Media
If you are like most of us, you have an account with Facebook, Instagram, possibly Twitter, and Linkedin, to name just a few major platforms. Defense attorneys are increasingly successful in obtaining information from these areas from injured plaintiffs. Judges generally are ordering plaintiffs to turn over either passwords to all accounts, or printouts of timeline postings. If you go on vacation to Aruba while claiming your back is too injured from the car crash to work, but post a photo of you on a jet ski, expect that to be used against you. For that reason, the advice I give clients is to not post about anything concerning the incident, their injuries, or their health, or even photos showing them looking happy or comfortable, from the time they are injured until the case is over. However, it is important to also note that you should not delete any posts already made. Deleted posts can be resurrected, and may be determined as “spoliation” of evidence.
Personal Injury cases are much more involved than most people realize, and require the talents of an experienced lawyer. Documenting your injuries is something you should be doing, but you should be working with someone who understands the ways to accomplish this without prejudicing your case. Do not try to handle this yourself! Call a lawyer as soon as possible, before you make crucial errors.
Stephen Hoffman firstname.lastname@example.org