Do You Recommend That Clients Keep A Journal Of Events Following An Injury?
Whether or not a client should keep a journal of events following an injury is not straightforward. If they do, it’s important that it is given solely to their attorney and cannot be obtained by the defendant’s insurance company or others, as it qualifies under the attorney work product exception. However, if a client testifies that he or she reviewed notes that were taken, for instance, in a diary, and if that review refreshed their recollection of certain facts, then that writing is no longer protected by the attorney work product exemption. As a result, it must be given to the defense upon request. When we are in depositions, the defense attorneys for the insurance company will always ask a client, “Have you relied on any notes or any writings that you may have had to refresh your recollection of what happened at the time of the accident? We are two or three years from the date of the accident, and that’s an awful lot to remember.”
Any discussions between the attorney and the client are privileged, and any writings that a client may prepare for an attorney are privileged. Therefore, the lawyer can prepare a client before testimony and the words that are spoken to the attorney by the client in those communications or in those writings are not going to be discoverable. If a client keeps a journal and it doesn’t go directly to the attorney, it can be a very embarrassing incident and very harmful to the client’s case. We advise our clients to constantly communicate with us regarding an accident, including any doctors they visit, what the doctors told them, etcetera. By communicating frequently, we can refresh their memory as necessary and our notes will never fall into an insurance company’s hands.
Many people will call us for help on their case, stating that they have had an attorney on their case for two or three years with whom they have never spoken. They don’t know what’s going on with their case. If the clients are not constantly communicating with their attorney, the attorney cannot give them proper advice. In addition, the attorney cannot take notes as to what has been happening during their course of treatment. As a result, the client can’t give effective testimony later on. So, if a client is going to keep a journal, they need to understand that it must go only to their attorney. But even more effective than keeping a journal is maintaining active communication with the attorney, and letting the attorney keep notes for them.
How Soon Should Someone Seek Medical Treatment After An Injury?
A person should seek medical treatment as soon as humanly possible. In certain types of cases, even one day may be too long to wait. We encourage our clients to seek medical treatment immediately after an accident. All cases are certainly different, but the consequence of waiting too long is that the insurance company will take the posture that the injury happened in some manner other than the negligence of their insured client. Sometimes people are just too hurt to see a doctor, but the insurance company will use that delay as a way to doubt the severity of the injuries. Any delay will be capitalized on by the defending insurance company.
What Are Some Unintentional Mistakes That Can Harm A Personal Injury Case?
Giving a statement in any form to the defendant’s insurance carrier will absolutely harm a person’s case. Even filling out forms that the insurance company sends them will hurt their case. These are things that should be done by their attorneys. One of the worst failures is when a person contacts the insurance carrier and tries to settle a case on their own. This is because the insurance company will see the client as a person who is in a hurry to get money, which will dramatically discount the case. It’s very hard to recover from that. Other mistakes include failing to see a doctor promptly after an injury, and failing to keep appointments with a doctor.
Everything that causes a delay in treatment will be commented on by the insurance company in order to suggest that the client was not injured very badly. An innocent conversation about a case with friends or coworkers will encourage the insurance company to discount the case tremendously. Any person with whom a defendant makes contact can potentially be called to testify in court. This could prolong a case for two or three years because the insurance companies will want to take those people’s depositions. The insurance companies will ask if you’ve told anyone about your injury, and who can testify on your behalf in regards to what you can no longer accomplish as a result of your injury. When asked these questions, clients are generally happy to give them the names of everybody in their family and every friend they have who will tell them how horribly the injury has affected their lives. In response, the insurance company will take those people’s depositions and have their attorneys manipulate their testimony. As a result, the value of the case and the client’s ability to receive damages accordingly are affected.
Social media is so prevalent these days and it is absolutely fatal in almost all cases. We insist that our clients stay off of social media after they have been injured. We’ve found over the last several years that clients can’t even remember the innocent thing they said or posted on Facebook. Trust me, it’s going to be displayed to a jury, and it will hurt them. For example, during my very early years of practice, I had a client who had a very terrible and valuable back injury. The insurance company saw photographs of our client standing in the back of a pickup truck, cutting up bales of hay and throwing them out to his horses.
As you can imagine, they questioned how somebody with a terrible bad back could be doing this. Thankfully, we were able to look at those pictures and show in trial that our client was not smiling in the photograph. He was clearly in a lot of pain- something the insurance companies hadn’t analyzed. By zooming in on our client’s facial expression in the photograph, the jury could appreciate that he was indeed very badly hurt. Our client also testified that while it hurt to feed his horses, he couldn’t let them starve. But this example is an exception; social media can come back and bite anybody. So, once again, we insist that our clients stay off of any social media site after they’ve been injured.
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