One of the most effective ways for you to record your pain and suffering is through the use of a personal injury journal or diary. A personal injury journal is especially helpful if you have no objective sign or manifestation of injury, and your pain and suffering must be proven and documented for there to be a substantial recovery. After many weeks, months, or even years have transpired between the time of injury and trial, it will be extremely difficult for you to remember specifics about how you felt on a particular day. The journal can help solve this problem and can be an important tool in helping you to prepare for deposition, settlement, or trial.
Keeping a thorough and complete journal is one of your jobs as an active and productive member of the team.
Instructions on how to keep a personal injury journal or diary
1. Understand the purpose of your journal.
The purpose of your diary or journal is to assist you in keeping an accurate record of the pain you are experiencing and any problems that arise out of or result from that pain. You have the responsibility to keep the journal. Notes should be in your own handwriting, unless your injury precludes you from personally preparing your journal. You may also type notes concerning your journal entries. This can be useful if your handwriting is weak or difficult to read. Avoid showing the notes to anyone. They should be kept strictly confidential and should be mailed to your personal injury attorney on a regular monthly basis. Contact your attorney if you have any questions about how the journal should be kept, completed or maintained.
2. Describe how any pain, discomfort, or other manifestation of your injuries affects you.
The purpose of a personal injury diary or journal is simple: it should accurately and completely describe how the injuries, pain and discomfort you have sustained are affecting you in your everyday activities. You should describe how you feel beginning from the moment you first awake, through the course of your normal day, until you retire at night. Explain how your pain and injuries have affected, changed, or altered the way that you live. Some days will be better than others; and your “good days,” as well as the bad ones, should be accurately documented in the journal. Never exaggerate or fabricate your entries. Keep the journal accurate and detailed and-most importantly-honest. Although your personal injury attorney will try to keep your journal confidential, it may become discoverable as part of the litigation process; in fact, it may be necessary to use the diary at trial to document your pain and suffering.
The law recognizes the right of recovery for pain and suffering. Therefore, the way your pain, suffering, and injuries have affected your disposition, emotional well being, job performance, and even your marital relations, are extremely important and pertinent to your lawsuit. The law recognizes a cause of action for the effects the injuries may have on marital relations. This cause of action is known as a claim for loss of consortium.
Some jurisdictions recognize parent-child loss of consortium. Your injury attorney will tell you if yours does and if so, any problems caused by injury or pain to the parent-child relationship must also be detailed.
3. Description of pain and suffering.
Use your own words to describe your pain and suffering. Keep your diary each day the same way you would if you were not using it as part of a litigation process. Document the way you feel and how you felt at the scene of the accident, during your hospital stay, and throughout each particular day the diary is kept.
4. Focus on each part of your body that experiences pain and discomfort.
Stay in touch with your body. Reflect on how each of the parts of your body feels. Note whether there is any limitation in movement in each body part and whether it is painful to use that part of the body during the normal work-day or social activities.
5. Describe your emotions and feelings.
The pain, injury, and discomfort you are experiencing may be affecting your emotions. Be open and honest in explaining how these conditions are affecting you. Avoid taking a consistently negative attitude in the journal, and avoid phrases that can be easily contradicted. For example, although it may be tempting to say “I can’t sleep” or “I can’t move my arm,” there are only rare circumstances where there is a total inability to perform such functions. Thus, it is usually more accurate to note that there are severe limitations placed on these functions. For example, you are experiencing difficulty in sleeping, or you have severe limitations in specified movements, or it is difficult or painful to move specified parts of your body to perform specified tasks. Avoid using imprecise or exaggerated language that can, and very likely will, be used against you during cross-examination.
Whenever possible, try to keep a positive, upbeat attitude. For example, the pain you have may be severe, but you should try to explain how you may be attempting to cope with it. Try to provide examples of how you are trying to deal and cope with the pain, and try to concentrate on the efforts you are taking or plan to take in an attempt to change your lifestyle to make up for any limitations that your pain and suffering have caused.
6. Keep a record of any loss of income, loss of earning capacity, or other wage loss information.
Keep copies of payroll stubs, W-2 forms and other income tax returns. If you do not have records relating to this financial information, your personal injury attorneys will have authorization forms for you to sign that will allow them to obtain these items and help you keep accurate records.
Whenever your injuries or pain have caused you to miss work, or will likely cause you to miss work, make sure to keep an accurate record in your diary of each date missed, why it was missed, how you felt that particular day, and whether any specific wages or benefits were lost as a result of missing work.
7. Keep a record of any physicians or other health care professionals you have visited or with whom you have consulted.
Make sure to keep a good record of your medical visits as well as telephone consultations with physicians or other health care providers. Although your attorney will be able to obtain copies of your medical records from these health care providers, it will be important for you also to record how you felt in anticipation of, and during the medical visits, how you felt and reacted when you learned about the nature, progression or extent of your injuries, and what advice you were given by physicians and other health care providers and what you did in response to that advice.
Record specifically the physician or other health care provider, the date of any visit or advice given, and address, telephone or other contact number.
8. Keep a record of witnesses.
Note any witnesses that can substantiate wage loss, pain, emotional trauma or other consequences of your injury. The journal should contain the name, address and telephone number of each witness, with respect to a particular day, incident or event.
9. Recognize the importance of your journal.
Your diary will be an important trial aid because it is an accurate record of your pain, injury, discomfort and damages. Your journal can help you to document how you felt each day as you experienced any pain or discomfort that resulted from your injury; and the journal can help you to explain how the injury has affected your life and how you may have changed as a person as a result of your injury.
10. Cross referencing where appropriate.
Where appropriate, cross reference pages, sections or chapters of the journal to other appropriate evidence, such as medical reports, tax information, lost wages, police reports, photographs or videotapes.