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Keeping a journal can be valuable in a civil litigation

First off, thank you to the reader who proposed a driver safety topic about driving while wearing flip-flops.  My friends are accusing me of sounding preachy again so I am going to try to leave the driver safety topic alone for a bit.  I invite you, and others with driver safety ideas, to perhaps send in a letter to the editor.

By the way, if you missed my wife’s letter to the editor in response to my column two weeks ago, that’s just as well!

This week I have important tactical advice about pursuing a legal claim for fair compensation for an injury.

I have written previously with the advice that you keep a journal or diary recording your symptoms as well as how those symptoms are impacting in a very real, practical way, on your day to day life.

There are two key reasons for doing so.  If you wish, e-mail me and I will send you links to those previous columns.

I have also warned against using social media as a form of journal or diary, such as posting how you are feeling on facebook or twitter.  I can send you a link to that column as well.  The problem in a nutshell is that those postings can be used unfairly against you.

Of course, we read earlier this year about the Williams Lake man who boasted on facebook about committing a fraud against ICBC, leading to his conviction.  I encourage that kind of posting.  If you’re the kind of loathsome person to commit a fraud, please brag about it publically.

Journal or diary notes can be used unfairly against you, just like social media postings.

It takes energy and time to make regular diary notes.  It can also be depressing, continually reminding yourself about how your life is different from how it had been before a crash.  Those factors lead most people to make the bare minimum of notations necessary to refresh their memory down the road in order to prove their losses and achieve fair compensation.

If a defending insurance company gets their hands on your diary or journal, they will exploit the lack of comprehensive journal entries.  For example, If you note a severe headache on one day, but not on other days, they will use your journal to try to prove that you did not have a headache on those other days.

Unlike a publically posted notation on facebook or twitter, though, you can protect your journal from being mined by the defending insurance company to their unfair advantage.

Journal entries made for the purpose of prosecuting your claim in a lawsuit are protected by a confidentiality that will entitle you to keep the journal private.  You will be able to use it fairly to refresh your memory, but the insurance company will not be able to use it for unfair purposes.

Many people start keeping a journal or diary about injuries and life impacts instinctively, or because a friend or family member has heard that, for whatever reason, it is a good idea.  Perhaps a journal might be kept with the purpose of showing it to the insurance adjuster to help with negotiating the claim.  Journals kept for those reasons will not be protected.

If you have already started a journal for some reason or purpose other than to prosecute your claim in a lawsuit, I recommend that you start a new one with that new purpose in mind.  To make your purpose clear, write something like the following at the top of the first page of that new diary: “I am keeping this journal on the legal advice of a lawyer for the purpose of prosecuting my claim in a lawsuit”.

Published June 7, 2012 in the Kelowna Capital News

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