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Should I Keep a Journal After I Get Injured?

Posted by Scott A. Staples | Mar 25, 2019 | 0 Comments

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So you've heard that your personal injury case might drag out a long while. You also know it's likely that someday a bunch of insurance adjusters, lawyers, and doctors are going to be asking you a lot of questions about what happened, what hurt, how long it hurt for, and how it impacted your everyday life.  Details are going to matter. 

Then you think to yourself: “I can't remember what I had for breakfast, my kids' middle names, or what night of the month book club is on. How in the world am I going to remember all those important details months, if not years after the fact?  I'd better keep a journal!”

Great thought…although I have to admit as an attorney representing injured people I am of two different minds on this topic. I always want my clients to tell the truth throughout their case, to everyone involved. And I think it's largely true that, if you are truthful and accurate in your journaling, it probably can't do you too much harm. Except when it can. For example, when a defense attorney reads through your journal someday and sees that you stopped making entries three months after your injury, or the entries get more sporadic and less detailed, the attorney is going to use that to show that you must have gotten better at that point, even if the truth is that you got tired of dwelling on the depressing drudgery of your pain-filled weeks so you stopped recording it all. You may be painted as the author of an overdramatic novel starring you and your pain. I could probably think of a dozen other ways your writings could be used against you, but you get the idea. 

If it's shocking to you that a defense attorney might be able to invade your privacy like this- reading your innermost thoughts about your injuries and frustrations- I'm sorry to report that it's true. In litigation (i.e., after a lawsuit has been filed in your case) the defense is normally going to be entitled to copies of things you have said or written to others about your injuries and how they've impacted your life, to compare those statements against the story you're telling in the lawsuit. This can include statements in medical records, e-mails, on social media (a big one, and a topic for a different post), and in journals. Whether the defense gets to use them in court is up to the judge and can be a nuanced analysis, but you should assume what you write about your injuries is going to be fair game someday. 

An important exception to all of this are writings that are subject to attorney-client privilege. Basically, what you write to your lawyer (or your lawyer's team of investigators and support staff), is subject to the privilege and will almost never have to be divulged. This includes a journal written for your lawyer at the lawyer's request.

So if there's an upshot to all of the above, I'd say it's this. Journaling about your injuries and struggles, especially if your memory isn't the greatest, can be a productive, even essential exercise. But if you're not doing it at the request of your lawyer, it may be discoverable someday, so be cautious. Remember the potential perils, be consistent, and above all, be truthful.

About the Author

Scott A. Staples

Scott Staples came on board in 2006 as a clerk during law school, and joined the firm as an associate attorney in 2007. He was made a shareholder in the firm in 2010. Scott graduated, cum laude, from Washington State University Vancouver with a BA in English, and obtained his Juris Doctorate from Willamette University College of Law, with cum laude honors there as well. He has successfully represented clients in a variety of different types of injury cases, including auto collisions, premises liability, animal attacks, watercraft accidents, and construction site injuries. He has appeared, and won, before the Washington State Supreme Court (Weismann v. Safeco, 2012). Scott has volunteered time for the past several years at the Clark County Volunteer Lawyers Housing Justice Project. He has previously served on the new member and membership committees for the Washington State Association for Justice (WSAJ), and has acted as chair and co-chair of the WSAJ Clark County Roundtable. He is a member of the Washington and Oregon State Bar Associations, WSAJ and OTLA (state trial lawyer organizations), and is admitted to practice in all state and federal courts in Washington and Oregon. Scott was born and raised in Vancouver, attending Vancouver public schools and graduating from Hudson's Bay High School. He enjoys playing recreational basketball and softball, skiing, and spending time with his wife and three children.

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