Go to navigation Go to content

You keep a diary. You bring a lawsuit. You fear the defense will be able to look at your diary if you bring a lawsuit. Is this possible?

Your doctor caused you really bad injuries.

He was careless.

He was negligent.

He violated the basic standards of good medical care.

You are thinking of bringing a lawsuit in order to get compensated for all of the harms and losses you suffered through no fault of your own.

For years you have kept a diary.

A personal diary.

You write in it daily.

You divulge your deepest thoughts in your diary.

You make journal entries at the end of every day.

You record your innermost thoughts and feelings.

Some days are good.

Some days are not so good.

Your anger and frustrations are included in your diary.

Your hopes and desires are also written down.

You have never shown this personal look into your most personal thoughts to anyone.

Not your spouse.

Not your kids.

Not your sister.

Not your mom.

This is yours.

Under lock and key.

It's private.

Nobody has access to it.

You make notes of conversations.

You make notes of observations.

You make notes of things that inspire you.

But now you're worried.

From the time you believe your doctor caused you harm, you've been keeping a journal documenting everything that had to do with your care and treatment.

You've been documenting your conversations with your treating doctors.

You've made notes about what other doctors have said about your condition.

You have even made entries about what some doctors said about your first doctor's careless treatment of you.

In fact, it was those other doctors who strongly suggested you contact a medical malpractice attorney.

In addition to conversations you have also made notes about your pain.

You record what time of day you're in pain.

You note when you take medications to alleviate your pain.

You have a calendar system, like Google calendar to record when your doctor's appointments are.

After every doctor's visit, you make notes about what you complained of and what the doctor did on each visit.

You are proud of your notes.

They are thorough.

They are detailed.

They are complete.

But they are private.

For your eyes only.

Nobody else.

They are in your handwriting.

None of that computerized note taking.

Your handwriting is very readable to you, but not so readable to someone else, should they glimpse your notebook.

You spend considerable time picking out your personal diary.

Most of them are leather bound.

Many have a lock and key.

They are only for you to read.

But again, you're worried.

You read an article somewhere that said your personal diary and notes might have to be turned over to the defense lawyers if you bring a lawsuit involving an accident case or a medical malpractice case in New York.

You need to know if this is true.

If it is, you might reconsider bringing a lawsuit.

If it is, you want to know if your innermost thoughts will be made public.

Will your diary be leaked to the New York Post?

Will you wake up one day during your lawsuit to find that your entire diary notes are posted online by some hacker?

Let me take you though what happens in an accident case or a medical malpractice case and you just happen to have a diary.

First, whenever you bring a lawsuit where you claim you suffered significant injury as a result of someone else's carelessness, you put your physical condition in issue.

That means the defense attorneys will have an opportunity to get all of your medical records.

The defense is entitled to look at your medical history.

They're entitled to look at your current medical treatment.

During your lawsuit, they may even have you examined by a doctor of their choosing to evaluate your current medical condition.

Then, the defense will do an investigation on you.

They will run a criminal background check on you.

They will do a social media investigation on you.

They want to learn who you are and what you are posting on social media.

They will look to see if you've brought a lawsuit in the past.

During your lawsuit, the defense will have an opportunity to question you, in your attorney's office.

This is a question and answer session known as a deposition.

A court reporter is present to take down all of the questions that are being asked and all of the answers that you give in reply.

This is pretrial testimony that carries the same weight as if you are testifying at trial.

The only real difference is that it's taking place in an attorney's office instead of the courtroom and there's no judge or jury present.

One important thing you need to remember as the defense lawyer asks you probing questions...

He wasn't there with you when you were getting treatment.

He doesn't know what conversations you had with his client or anyone else.

He is not in your home each night and doesn't see you complaining.

Nor does he really know what activities you are limited in doing as a result of the injuries you are claiming you suffered because of his client's carelessness.

That means he's going to be asking you lots of questions that you think have absolutely nothing to do with the claims against this doctor.

Despite having these feelings, you are likely going to have to answer all of his questions.

You're going to answer them as honestly as possible.

Your attorney is there to make sure the questions you are asked are phrased properly.

Your attorney is there to make sure he objects to questions that are not relevant to the claims and injuries in this case.

During your questioning during this pretrial testimony, the defense lawyer will ask a very simple question...

"Do you keep a diary?"

"Do you keep a journal?"

"Do you have notes about any conversations with any doctors who were involved in your care and treatment?"

Why would the defense attorney ask such innocent sounding questions?

For two reasons...

(1) He doesn't know the answer and

(2) He was not present for any of your care and treament or conversations with any doctor or medical staff.

If you have notes about conversations, that might provide detailed insight about what happened during a hospital or doctor's visit.

If you have notes of your complaints, it will shed insight into your medical problems that might not be fully documented by your doctor or medical staff.

If you keep track of your pain and your medications, this might give the attorney an insight into what goes on with you behind closed doors, when nobody is watching and you're recording your personal thoughts.

Let me share a WARNING with you.

No matter how innocent the defense lawyer's question is,

No matter how sweetly the attorney asks this question, he is going to do everything in his power to use your own notes and words AGAINST YOU.

How could he do that?

There may be something in your notes that says you like your doctor a lot.

Maybe you even forgave him for what he did and you recorded those notes.

Maybe you wrote that it wasn't his fault for what happened to you.

Maybe you wrote that it was fate or God's hand that caused your problems.

The defense attorney will find that information and USE IT AGAINST YOU AT TRIAL.

He will use it to show to the jury what YOU REALLY THINK.

He will contrast your personal notes with something you said at trial.

He will try and show contradictions between what you recorded and what is in a doctor's record.

Many times he will be very sweet about it in front of the jury.

Other times he will be nasty and condescending.

Now, let's get back to that sweet innocent question...

"Do you have a diary?"

If you say 'yes' the attorney will ask you tons of questions about when you started keeping a diary.

When do you make entries in it.

Who has access to it.

How often do you fill up a notebook?

Do you record observations about your doctor visits?

Do you make notes about your conversations with your doctor?

Do you keep a log or journal of your pain and what you are limited from doing?

The attorney will get you to commit to things you do and don't do with your diary.

He will then ask many, many, more questions about what's contained in your diary and where you keep it.

If you have told the attorney that you do have a diary and make extensive notes about your care and treatment, he will turn to your lawyer and ask for copies of all of your diaries from the time of the wrongdoing up until now. ALL OF THEM.

Not selected pages.

Not selected dates.

All of them.

Your innermost thoughts.

Your personal notes.

Now open to scrutiny.

Scrutiny by an attorney who is going on a fishing expedition to see if there's any juicy information in your diaries that could help or hurt his defense.

Once you have acknoweldged that you keep detailed diaries and notes, not only will the defense attorney demand (politely) copies of your diaries, but he will also demand (at first politely) that you return back to your lawyers office so that he can question you AGAIN about the entries and notes in your diary.

That means that he could theoretically spend hours and hours and sometimes days asking you detailed questions about every single note in your diary.

This happened to me in a medical malpractice case involving a woman who lost vision in one eye because a radiologist failed to tell the emergency room doctor that the patient had a massive tumor in her brain that was cutting off blood flow to her optic nerve.

After she learned of this screw up, she began keeping notes. 

Her memory wasn't as good as it used to be.

She recorded conversations moments after they happened.

She took a notebook and pen to every doctor's visit.

What do you think happened when the defense lawyer asked my client during her pretrial testimony in my office if she had a diary?

"Yes I do," she replied.

The attorney questioned her for two hours about what was in her diary.

He then asked for copies of her diary.

I said "No, you're not getting them."

The attorney said, "We'll let the judge decide that."

What do you think the judge said?

He said "Turn over those diaries." 

The judge did try to limit the attorney to only those entries involving her medical care and her injuries and conversations.

A lot of good that did, since my client's notes and diaries were full of conversations and observations.

The judge said that I had to produce my client again for pretrial questioning after the defense lawyer had a chance to read my client's diaries.

That was absolute torture.

Hours upon hours of questioning about the most miniscule things. 

Little diary entries that had nothing to do with this case were delved into.

The attorney wanted to get the meaning and interpretation of so many handwritten notes that it truly was torture sitting there watching him pick apart this woman's most personal notes and inside look at what was going on in her life.

You should know that most of my clients do not have diaries, journals or notes and that's fine too.

To learn even more about whether your diary is discoverable, I invite you to watch the video below...