One of my key pieces of legal advice to injured victims is to “preserve the evidence” by keeping a diary.
I have written about this advice before, dating back to my second column with the Capital News on Jan. 14, 2007.
I am not unique in giving this advice. The word seems to be “out there.”
Many people consulting with me about their injury claims confidently tell me that they are already keeping a diary.
Some bring printouts of their diaries with them.
I regularly find, when reviewing the diary entries, that a lot of diligent work has been done.
There are often daily entries. Keeping the diary has become a daily chore; yet another thing on the injured victim’s plate.
There is frustration about having to write down, day after day after day, that there is pain in this area of the body and that area of the body.
It doesn’t take long before changes in symptoms become less and less dramatic, with chronic symptoms setting in. The diary entries become very repetitive.
Notations are also often made for the two to three times per week that trips are made to the massage therapist, physiotherapist, or chiropractor for treatment.
Most people think, when making those repetitive entries, that the diary will be evidence to prove that the daily, nagging pain is continuing, and that treatment sessions have occurred.
They envision that they will hand it to an ICBC adjuster or, if necessary, a judge, and say “See, I really do have ongoing chronic pain. I really have attended all those treatments.”
It’s the sad truth about chronic pain. It’s not visible. It doesn’t show up on x-rays or other scans.
Keeping a diary feels like a way to add objective evidence to help achieve fair compensation.
I have reviewed my archive of six and a half years of weekly columns.
I see that I have never before explained the actual use of a diary and the kinds of entries that are useful to make.
My advice is to stop making those repetitive, daily entries. It is a useless exercise that will serve only to focus you even more on the chronic, ongoing drudgery of pain and thereby lower your mood even further.
Except in very rare circumstances, your diary notes will not be admissible in court. Except to the extent the diary notes can be used by ICBC’s lawyers to hurt you, they will never see the light of day.
By way of very short explanation, your own diary entries are not admissible because you will be there to testify, to tell your story yourself, and the law doesn’t allow you to use your own notes to bolster the credibility of what you tell the court.
If your diary gets into the hands of the ICBC lawyers, they will use it to pull out only those very specific entries that could be used to hurt you, admissible because those are “admissions against interest.”
The reason why I advise, very strongly, to keep a diary, is simply to assist you with refreshing your memory so that you will be able to share your story as accurately, vividly and compellingly as possible.
You will remember that your whole body seemed to hurt for the first while after the crash, but you will forget the details.
You will forget, for example, that your husband had to help you cut the food on your plate.
You will forget the time your friends invited you out for that camping trip and the look on your children’s faces when you had to decline.
As your new life with chronic pain becomes your new reality, you will forget the vivid details that help the rest of us “get it.”
The “It hurts, it hurts, it hurts” begins to feel to you, and sound to the rest of us, like whining.
Share the details and our eyes start to tear up just like yours.
Don’t make a daily, repetitive entry that your neck hurts.
That’s not going to be of any help in refreshing your memory so that you can more accurately and vividly share your story.
Instead, make perhaps an entry every week or two describing a typical day, or detailing your symptoms when they were aggravated after you tried to do a little yard work.
Don’t bother noting your visits to your doctor and therapists.
Record of those visits are kept by your treatment team.
Don’t worry about spelling, sentence structure, or grammar. You, and only you, will ever read that diary. Proper spelling won’t assist you in refreshing your memory.
Live your life to the fullest extent possible.
Focus on what you can do, not what you can’t.
But along the way, perhaps every week or two, make some detailed diary notes so that you can refresh your memory with the details necessary to help others understand your new reality.
Paul Hergott is a lawyer at Hergott Law in West Kelowna.
paul@hlaw.ca
