Important Considerations When Choosing a Brain and Spinal Cord Personal Injury Lawyer
If you are a loved one are one of the thousands of people in the United States each year who has suffered a traumatic brain injury (TBI), how should you choose the right lawyer to represent you? Such a lawyer needs a unique combination of compassion, skill, experience, resources, and determination.
1. Make sure you can understand the lawyer.
Personal injury lawyers use a lot of legal terms or jargon that the average person may not understand. Sometimes this happens because it doesn’t occur to the lawyer that the average person will not understand the terminology. Sometimes the lawyer believes that using such terms makes him or her sound like more of an authority, or uses the terms to avoid answering a question. In addition to legal terminology, TBI cases often involve a fair amount of complex medical terms (e.g. epidural, subdural and intracerebral hemorrhages, intracranial hemorrhages, excitotoxicity, increased intracranial pressure, hypoxia, anoxia, ischemic brain injury, hydrocephalus, neurophysiological testing, MRI, CT, QEEG). A lawyer using medical or legal terms without explaining their meaning can be confusing, stiff, arrogant, aloof, and/or intimidating. It is important that you find a lawyer who can explain terms such as those set forth above using plain language, and who will answer direct questions with direct answers. If a lawyer cannot explain your case to you using the language you can understand, you should question whether that lawyer will be able to explain your case to a jury.
2. Ask how many TBI cases the lawyer has handled.
Either out of a sincere but misguided desire to help or for selfish reasons, some lawyers will act like they can represent you even though they have little or no experience handling TBI cases. You don’t want your case to be the one on which a lawyer to learn how to handle a brain injury case. Large insurance companies with tremendous budgets for legal defense hire bright, often ruthless lawyers to defend their interests. A lawyer who has handled brain injuries will be familiar with the defenses, tricks, and legal theories that such lawyers use, and will know how to deal with them. The law is constantly evolving in several areas important to brain injury cases. Only a lawyer who regularly practices in the area will be familiar with and prepared to deal with those changes. Medical technology advances also impact how a case should be prepared and presented. Only a lawyer who tries to keep up with those advances can help you maximize your recovery. Therefore, a lawyer who does not regularly represent individuals affected by TBI may not be your best choice.
3. Find out how many cases the lawyer handles at any one time.
Brain injury lawsuits are complex and require significant amounts of time, effort, and attention in order to maximize the client’s recovery. Many personal injury lawyers handle a large volume of cases at once, with injuries ranging from minor cuts, bruises, and scrapes, to more serious injuries. There is nothing inherently wrong with a lawyer handling a large volume of cases, so long as the lawyer can give each case the effort and attention it deserves. At the same time, because of the complexity of TBI cases, it is unlikely that a lawyer already handling 100 cases for other clients is going to be able to give you the personal attention your case needs and deserves. In addition, some lawyers chose to delegate primary responsibility for communicating with clients to legal assistants and paralegals in order to be able to take on more cases. While there is nothing wrong with using legal assistants and paralegals to perform appropriate tasks, certain functions should not be delegated in TBI cases. You should ask the lawyer whether your questions about your case will be answered by an experienced lawyer, or by an assistant, and how quickly you can expect phone calls to be returned. While lawyers are often busy with client meetings, depositions, court appearances, etc., if the lawyer is not prepared to commit to personally return your calls within a reasonable time (within a day or two), you may not be talking to the right lawyer.
4. Observe whether the lawyer exhibits signs of patience and compassion.
Clients and the families of those suffering brain injuries need personal attention. TBI survivors and those close to them struggle to understand and adapt to their new reality. In addition to impairments caused by the injury itself, it is not uncommon for the injured person and close friends and family to struggle with anger, frustration, irritability, rage, anxiety, and/or depression. The injured person’s personality often changes in the eyes of close friends and family, and the injury can cause devastating effects on interpersonal relationships. Frequently, spouses feel as if they are no longer married to the same person, and divorce following a TBI is not uncommon. An attorney needs to understand that you and those close to you are not at your best, and must have the patience to listen and make a conscious effort to fully understand the injury’s impact on all aspects of life. The lawyer also needs to be prepared to help educate the client and his or her family on the injury and the legal process. Finally, the lawyer must be able to show genuine empathy for the client. If the lawyer does not appear sincere to you, he or she may not appear sincere to a jury.
5. Ask the lawyer to explain his or her understanding of traumatic brain injury.
Brain injury cases require an understanding of the science of brain injury. You should ask the lawyer whether he or she has read books on the subject of brain injury and whether he or she has attended and/or presented at professional seminars and conferences specifically devoted to issues that arise in brain injury cases. A lawyer who handles brain injury cases should be familiar with and able to explain the anatomy of the brain and the mechanisms of brain injury. Medical experts categorize TBI as mild, moderate, or severe. A lawyer should be familiar with these classifications and should have a basic understanding of the diagnostic criteria and neuropsychological testing utilized to diagnose the injury and its severity. The lawyer should understand that even cases involving an accurate diagnosis of mild or moderate brain injury, the effects on brain function can be significant. The lawyer should be familiar with imaging techniques such as CT (CAT scans), PET scans and MRI and the significance of these studies in documenting the injury. The lawyer should also understand that brain injuries will sometimes not show up on CT and MRI imaging because the injuries have occurred at a microscopic level that these imaging techniques are not (yet) capable of picking up. The lawyer should also be aware that misdiagnosis and/or failure to diagnose are not uncommon in cases of moderate TBI (some ER doctors, focused on getting the patient stabilized and moving on to the next one, will quickly and sometimes erroneously conclude the patient has “only” sustained a concussion and move on without adequate instructions to watch out for symptoms of more severe injury and without advising patients regarding proper follow-up care). It is important for a lawyer to recognize that his or her role is not to tell medical experts what to think or say, but rather to work hand in hand with treating physicians as part of a team with the common goal of improving the injured person’s quality of life. However, in some cases, a proper diagnosis is not made until after an attorney that is familiar with the signs and symptoms of brain injury encourages the patient to be evaluated by a neuropsychologist.
6. Ask about the lawyer’s ability to identify and involve the right experts.
Successful resolutions to TBI cases often involve experts such as neuropsychologists and life care planners, and you should make sure your attorney knows and has worked with qualified experts in these areas. Based on detailed patient history, together with a battery of carefully constructed tests, the neuropsychologist can testify regarding the nature and extent of the patient’s impairments and can recommend treatments needed to minimize the effects of those impairments on the patient’s life. An ideal neuropsychologist has completed a one-year post-doctoral fellowship in the area, is board certified, is affiliated with a University Medical School or reputable rehabilitation facility such as the Shepherds Center, spends the majority of his or her professional time working with patients with TBI, is well respected by peers, reviews cases for both plaintiff and insurance defense lawyers, and can explain complex medical testing results to juries in simple, easy to understand language. Lifecare planners assess and describe in detail the future medical treatment that the TBI patient will need over the course of his or her life, including the types and frequency of medical evaluations, in and outpatient treatment programs, educational and vocational rehabilitation, and medical equipment and procedures, together with all of the associated costs. In order to get this information in front of the jury, the attorney must be able to select an expert with appropriate credentials to prepare the life care plan and must work with the expert to make sure the plan is based on full and complete information about the patient’s history.
7. Ask the lawyer how he or she typically builds a case.
While experts are important, sometimes the most powerful evidence in a TBI case comes not from an expert, but from a co-worker, friend, or family member who can explain how the injury has affected the injured person’s life, and any description of how to build a case should include references to the importance of so-called “lay” witnesses. A savvy lawyer will encourage the injured person to resist the temptation to withdraw from such relationships after the injury – not only is such withdrawal psychologically harmful to the client, but it reduces the availability of witnesses who can present compelling “before” and “after” descriptions of the effects of the injury. Often lawyers with experience in this area will ask the client, close friends, and family to create and maintain a diary of the effects of the injury; the diary will assist the lawyer in presenting an accurate picture of the injury months or years later at trial when memories of specific incidents and the sequences of events would otherwise have faded. To minimize attacks on credibility, such diaries should be shared with the lawyer, but not with other potential witnesses. A lawyer who is unfamiliar with the importance of lay witness testimony or the use of diaries or journals may not be a good choice.
8. Find out how the lawyer plans to deal with subrogation claims and liens.
In many cases obtaining a recovery from a negligent party and/or his or her insurance company is not the end of the story. If you receive payments for medical treatment from a government program such as Medicaid, or if a hospital files a lien for expenses, or if any of your medical expenses are paid by health care insurance, especially if the health insurance plan is governed by ERISA (almost all employer-sponsored plans are), a third party is probably going to want to get (re)paid out of any recovery your lawyer is able to obtain. Ask the lawyer whether he or she is familiar with the rules regarding such claims, and how he or she typically handles them. The law in this area is highly technical and has changed dramatically during the last few years, and is still evolving, so it is important to find an attorney who keeps track of changes that can affect how much of your recovery you will be able to keep.
9. Watch out for lawyers who (over) emphasize past jury awards.
Some lawyers like to boast about having taken cases to trial and obtained verdicts of six or seven figures or more. This practice is misleading and potentially harmful. The first thing to recognize is that a large jury verdict is inevitably followed by an appeal, which can result in a reduced award, a settlement, or even a new trial, and the amount actually recovered, in the end, may not be the same as the amount of an “advertised” verdict. Second, realize that a large jury award does not come without significant risk, and while a lawyer can move on to a new case, if a case is pushed to trial and results in a defense verdict, that client will have lost the only opportunity for a recovery that he or she will ever have. Lawyers should be proud of having obtained good results for a client, and because it is sometimes in the client’s best interest to take a case to trial rather than accepting a settlement, you should find a lawyer who has taken cases to trial and won. The point is simply that some lawyers who like to brag about large jury awards also have a tendency to encourage clients to take on the risk of trial when it is not necessarily in the client’s best interest. You want an attorney who can give you advice about the value of your case, and the risks of trial, based on an analysis of the facts and issues in your case. Verdicts in other cases can assist in predicting the value of your case, but only when the underlying facts and issues of those cases are comparable to yours. Without such a comparison, an advertised verdict from some other case in a different court, with a different client, a different set of facts, different lawyers, a different judge, and a different jury is just a number with no predictive value for your specific case, … and can be misleading.
10. Find out how (and how much) the lawyer is going to charge.
TBI cases are often handled on a contingency fee, meaning that if there is a recovery, the lawyer will take a percentage of that recovery as his or her fee, and if there is not a recovery, the client does not owe the lawyer a fee. The amount of the fee can vary depending on the facts of the case, the complexity of the legal issues involved, the likelihood of recovery, and other factors. However, contingency fees typically range between twenty-five and forty-five percent. In addition to fees, it is important to understand how expenses will be handled. Costs associated with pursuing a TBI case, including court filing fees, ordering certified medical records, paying court reporters, and hiring experts such as neuropsychologists, accident reconstructionists, and life care planners, can often exceed $100,000. Recognizing that most clients are not able to pay those expenses as they are incurred, most lawyers that are experienced in handling TBI cases will agree to advance such costs for their clients, and deduct the amount advanced from the recovery. Some State Bars require that the client remain ultimately responsible for these expenses and that the client be so advised in a fee contract. Whether your jurisdiction has this requirement or not, most experienced TBI lawyers make it a policy not to insist on collecting these expenses in the event the lawyer is not successful in obtaining a recovery, and you should clarify this with the lawyer upfront, before significant expenses are incurred in pursuit of the claim.
