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Defense counsel here. An effective deposition will uncover the existence of this journal, unless your client perjures his or herself. And your adversary will be entitled to it once it's existence is uncovered. And it's probably already responsive to one of the initial discovery demands served at the outset of the litigation.
It also seems like it could create plenty of fodder for cross examination, especially if your client's self- serving journal notes are inconsistent with medical records from treaters and with the defense's independent medical examination results and report.
It's also going to drag out your case because once defense counsel gets their hands on it, likely post deposition, they are going to want--and at least in NY-- will get a further limited deposition on its contents.
Can you client stand up to that kind of scrutiny?
Does not sound like a prudent thing to advise a client to do.
Rather than a journal, if such is necessary to refresh a poor memory, ask the client to communicate difficulties as they arise to you and your staff through emails. Those would be protected through attorney-client communications. An old-fashioned log-book directed to the attorney would do the same. Know your rules of discovery and evidence and sleep well at night.
When these kind of things "work", they're usually spontaneous - not preplanned for the purposes of litigation. Like I know a plaintiff's lawyer who discovered his client's wife was habitual about her calendar. She wrote down all the family events and activies they did for years, so he was able to create a demonstrative showing all the stuff they did before the accident and then how little after the accident. In a few pictures, it made the whole damages case. But you can't create those situations. When you try, it feels phoney to the jury because it is phoney. If your client is truly someone who journals, and they wrote some powerful journal entries about their experience by all means use them but you can't turn your client into someone they're not.
^TITCR
I've asked my client to keep a track for me of their pain, treatment, and other related experiences and circumstances. In my employment rights cases, I ask them to keep track for me of their experiences and interactions.
I would argue that if they're journaling, it's discoverable. If they're preparing a document for you, it's not. It's attorney client communications.
Yes I do this. If it’s written at the request of your counsel, it’s attorney client privileged information.
The A/C Privilege is for communications. An otherwise discoverable document attached to such communication does not fall under the A/C privilege simply by virtue of being attached to or part of the communication. If this were true I would claim privilege on anything and everything I send to my clients or that they send to me.
Although asking a client to make a journal to fit their allegations seems like sketchy ethical territory to me, I think the more appropriate claim to privilege would be the work product doctrine. But work product can be and often is discovered after the opposing side has made an appropriate showing. The burden for that showing varies by jurisdiction and common law (and tbh the mood the judge is in that day).
Granted I’ve only practiced for a few years. Older heads, feel free to correct me. But my general experience and the experience of those I’ve learned from is that privilege is a fairly amorphous concept in practice and judges do not employ it consistently when deciding discovery disputes.
Some will say it’s privileged but at the end of the day, judges do what they want with discovery and that journal is undoubtedly highly relevant to damages, plaintiff’s credibility, and more. I wouldn’t recommend my client do any journaling if I was a plaintiffs lawyer (I’m defense). Let the medical records and experts speak for themselves. Sure, there might be some benefit to the journal, but I don’t think the benefit outweighs the risk of potentially giving the defense impeachment material. What’re the odds everything in that journal is consistent with everything in the medical records? Pretty low.
Completely honest, I’ve never seen any plaintiff journal their pain and suffering. And if I did I would do my best to make it seem simulated or performative for the purpose of recovering damages, especially if the journal was authored after plaintiff retained counsel or filed suit.
With your example, if a doctor said P reached MMI and plaintiff said they couldn’t pick up their daughter because of pain on that same day, I would explain to the jury that P was technically able to pick up their daughter but chose not to. P perceived their pain to be more debilitating than it was in reality, and P would have the jury believe that they are more qualified to speak to their medical capabilities than a doctor. Now P wants you to compensate them for their inability to rehab and work with their MMI state. I would *tactfully* attempt to paint your client as oversensitive, which tends to resonate with older, more conservative juries (and let’s be honest old people are bored and love jury duty). The “crybaby” narrative resonates particularly well with working class folks who deal with chronic pain and injury all the time and don’t sue for it.
What I do see frequently, that in my opinion is equally or more compelling, is plaintiffs introducing pictures and videos of them doing things with their loved ones that they can no longer do, or having their family members testify as to the pain and suffering the plaintiff endured. IMO and in my experience, visuals do so much more for the jury than written words. I just don’t see a need for a journal; a good case presentation shouldn’t need one. And I wouldn’t bet on every judge upholding a privilege objection.
A pain journal, while in theory sounds like a good idea, I see a big opportunity to contradict the doctors. The moment the journal is offered in the deposition it’ll become discoverable. Moreover, any discussions in the journal, go against the medical records, or the doctors don’t know about clients said pain journal credibility is lost.
Additionally medical records should “suggest” pain levels. If they don’t there’s a problem with your medical records and you may want to have your client inquire about it with their doctor.
Lastly, as previously said, if your focus is on pain it’s an uphill battle.