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Don’t let evidence fade: document it

In an earlier column headlined: Honesty is Not Always Enough to Get a Settlement, I noted that I make sure my clients keep a diary. This was in the context of avoiding a credibility attack due to an innocent lapse in memory. If you are able to refresh your memory by reviewing a diary, your evidence will be more accurate.

Even minor inaccuracies will be capitalized on by the insurance defence team so as to try to make you look like a liar. There is another important reason to keep a diary.

Think back about a movie you really enjoyed, that you watched perhaps a year or so ago. Imagine trying to convince someone how good that movie was. Perhaps you remember who the main character was and the general plot line. You might be able to conjure up a couple of choice scenes. You might remember that it was good, but not remember that it had you at the edge of your seat the whole time.

I suggest to you that it is unlikely that you will remember sufficient detail to be very convincing. As much as this might have killed your enjoyment of the movie, had you kept a journal of key points as you watched it, you could probably put your mind right back there by reviewing those notes, and the added detail in your description would make you a whole lot more convincing.

How about trying to describe a holiday you have taken in the last three or four years? You might remember where you went and how long you were gone, but how about how your child’s face lit up when she saw Mickey Mouse? If you took a lot of photographs, they will help you recall some of those details.

If you took the time to put together a holiday album with photographs as well as notes, you would be able to bring the whole experience to the forefront of your brain by reviewing that album. You would be able to convincingly describe how excited your children were, how relaxing it was, how it was one of the best times you have ever had.

As you were watching the movie, and while you were on that holiday, keeping a record of it was probably the last thing on your mind. The images were so vivid, the experience so wonderful. How could your memories of those experiences fade so significantly? Sometimes, believe it or not, I’ll find myself realizing three quarters of the way through a movie that I have already seen it. Memories of bad experiences fade too.

How could you possibly forget the hurt look on your daughter’s face every time you have to refuse her request that you carry her, because of your crash injury? How could you forget having to leave the latest Bond movie before it finished because your neck couldn’t take looking up at the screen for the full three hours? How could you forget that you used to go out two or three times a week, when now you’re lucky if you feel up to going out socially once a month? Over time, your new life reality of living with pain becomes so commonplace that you forget how things were before.

In part, it is a psychological defence mechanism. You don’t want to remember. The thing is that when you are in trial three, four or so years after the crash, the jury will need to hear those details. In order for you to have any prospect of achieving a just result, and being properly compensated, they need to feel what you have felt through your testimony.

If your description of how your life has changed as a result of the crash is a general, non-specific one, the jury won’t feel it. Not having suffered through chronic pain, most of them will have no way to relate. You need not record your trips to the therapists or doctors. Those details will be in their records. It is the practical day to day, real-life impacts of the crash injuries that need to be recorded.

If you don’t record the detail, the detail will be lost, and you will not be fairly compensated.

Published May 6, 2007 in the Kelowna Capital News