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Advising Clients on the Do's and Don'ts of Keeping an Injury Diary

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By William Vogeler, Esq. on June 14, 2017 7:00 AM

It's an adage that some clients seem to know instinctively: put everything in writing.

But before your personal injury client writes too much, sit down and discuss some of the do's and don'ts of keeping a diary.

It's the kind of thing that could make or break your case because you never know who's going to read it. Here's a checklist:

Do's

Clients should keep a diary to help them remember what happened when they were injured and afterwards. They will not be able to read it to a jury, but they can use it to refresh their recollection.

The short list of diary information for proving damages should include:

  • Doctors' visits
  • Physical therapy sessions
  • Cost of medical treatments
  • Lost work time or wages
  • Type and duration of pain
  • Social problems from the injury

Don'ts

Some lawyers advise clients to write down everything, but that is not the best advice. For example, statements that could be read as failing to mitigate damages or revealing privileged communications would make any plaintiff's attorney cringe.

A personal injury diary should not include:

  • Admissions of fault
  • Failure to follow doctors' orders
  • Subjects that are not related to the case
  • Confidential communications with a spouse
  • Personally embarrassing matters
  • Advice from your lawyer

In the social media age, many people chronicle their lives publicly on Facebook or elsewhere. Clients should not keep personal injury diaries online, unless they want to give away free discovery and open the door to opposing attorneys.

For example, the New York Bar Association specifically says a lawyer may use Facebook for "possible impeachment material" without violating ethics rules. The same is generally true for lawyers searching the internet to find information about parties in litigation.

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