The Importance of Creating Contemporary Notes

In litigation, it has often been said "documents drive a case." Documents are something individual jurors, judges and arbitrators can wrap their arms around in deciding the facts of a case. A document is a story or human observation frozen in time as opposed to human memory, which is malleable.

Historian Nathaniel Philbrick observed that "Living in the here and now, we are awash with sensations of the present, memories of the past, and experiences and fears for the future. Our actions are not determined by one cause; they are the fulfillment of who we are at that particular moment. After that moment, we continue to evolve, to change, and our memories of that moment inevitably change with us as we live with the consequences of our past actions, consequences we were unaware of at the time."

Human memory is not fixed akin to a computer file of information that can be retrieved. Rather, human memory changes over time and regularly becomes more inaccurate as time elapses. Testimony, not supported by documentation, is characterized by an opposing lawyer as self serving and inaccurate--made up just for the witness' testimonial moment.

Recording in writing an observation or statement nullifies the argument that present memory is imperfect and weakens the characterization that memory refreshed by a document is self serving. That is why it is important for clients to keep pain logs in personal injury cases or, in employment cases, to keep personal notes of what a supervisor or co-worker says to them.

Documents exert substantial influence over jurors and judges, as they should. Notes can be effectively used at trial to refresh a witness' recollection on the witness stand. The refreshing of a witness' recollection can be a theatrical moment in the courtroom. The lawyer asks the witness, "Do you have a precise recollection of what happened on April 1, 2007?" The witness credibly and truthfully answers, "no." The lawyer then casually remarks, "I am now handing you what has been marked at Exhibit 1 and ask you to read it and tell me if you recognize Exhibit 1?" The witness, quickly recognizing the document as his/her personal notes or journal, testifies that "Yes I recognize this document. This document contains my written notes of what I observed on April 1, 2007." The lawyer then instructs the witness to review his/her notes. Following the witness' review of the notes, the lawyer asks the witness, "After having read your notes, is your recollection now refreshed as to what occurred on April 1, 2007?" The witness affirms that his/her recollection is now refreshed. The witness' testimony proceeds, in response to the lawyer's questioning, with the witness telling the jury or judge what happened over three years ago. In reality, the witness is speaking but the document is testifying. This is the kind of courtroom scene a lawyer lives to create. It is in these moments that the document, a contemporaneous recording of the observations of the witness, testifies in court through its creator, imbued with the credibility of a camera.

Documents also are a key aid in telling the story of a case on direct examination. Direct examination is the witness telling his/her story without the lawyer directing the examination asking leading questions that make it appear that the lawyer is the person testifying. Documents are a great prop to use in the flow of direct testimony. Introducing documents breaks up the monotony of a witness droning on as he/she tells a story in the context of direct examination. Jurors and judges wait in anticipation to see what information an anticipated document contains. Documents provide extra stimulation to the consumers of the direct examination story--the individual jurors or judge. Simply put, documents are another witness because documents, just like witnesses testify.

Notes in the form of pain logs are critical to the success of a personal injury case. Coping with the pain of an injury, a medical operation, convalescence and permanent injury is a journey of unique pains. If these unique pains are not documented, a client is unable to recall, in vivid detail, the day-to-day suffering he/she endured at the hands of the defendant. Giving a jury a handwritten journal of documented pain can be a powerful influence on a jury deciding how much to award in pain and suffering damages.

My advice to clients and perspective clients is to keep a journal or notes of important observations. It is best to keep notes in your own handwriting. Everyone knows that the computer files can be changed. Don't forget to date your notes. Otherwise, the writing could be considered "made up after the fact." Also, keep in mind that personal notes and journals are discoverable by the other side in any litigation. It is for this reason it is important to be factually accurate but to refrain from gratuitous comments that could cast you in a bad light.