The CDC estimates that 1.5 million people every year suffer traumatic brain injury (TBI) due to accident, injury, birth defect, or other less common causes. The legal aspect of brain injury statistics proves difficult for new, or inexperienced lawyers. It takes an experienced accident lawyer to take on a TBI case, one that has years of trying TBI cases to verdict with a very high success rate. As we previously established in Traumatic Brain Injury and Accident Law – Part 1 this is because TBI victims are said to have an “invisible” injury.
To the naked eye, a Traumatic Brain Injury cannot be seen, therefore the insurance companies are quick to attempt to use this to their advantage. This practice is not only deceitful and wading in murky legal waters, it hurts accident victims! The insurance companies will do everything in their power to try and convince an injured, frightened victim that they’re not entitled to compensation because they don’t have a visible injury. This is simply not true.
What should an accident lawyer prepare for?
Everything, of course. However there are specific preparations that must be made for a Traumatic Brain Injury case that require more preparation than usual. There are aspects of the legal side of brain injury law, that if not addressed, will hurt victims just as much as the insurance company’s attempt to withhold compensation.
Another aspect that can cause more harm than help, is that many lawyers will tell potential clients during consultation that they’re ready and willing to take on their TBI case, just to take the case away from another lawyer. Except, they founder and don’t know what to do when they get in front of the judge to try the case. That’s because a great deal of Personal Injury lawyers have never actually tried a TBI case to verdict! In theory they know their stuff, they may have read the books and studied other cases, and they believe they can handle the complexities of TBI law. In reality, they’re unprepared for the massive task in front of them.
Why is the legal side of TBI so complicated?
When it comes to TBI injuries, legal claims become more complicated than the “average” Personal Injury claim (claims where the injuries are visible to the insurance company, and they cannot deny what they’re seeing). Sometimes the legal side of a Traumatic Brain Injury case can be more complicated than the medical side of this type of injury.
The answer to why this is isn’t a simple one, but can be explained in the following manner: a TBI cannot be seen, and as such it’s difficult for a judge to rule fairly on whether the victim is injured. That’s why it’s imperative that a victim retains experienced legal representation that’s aware of what’s needed to successfully convince a judge that their client is, in fact, injured to the point of both losing their quality of life and ability to function normally. This weight placed upon the Personal Injury lawyer is known as “burden of proof”. It’s up to the plaintiff (the injured party) and their lawyer to provide as much accurate, factual information to the judge as possible in order to be awarded the maximum amount of damages.
So, what does a Personal Injury lawyer need to be well acquainted with aside from preparing witnesses, understanding TBI law, and as with any Personal Injury claim, being able to protect the rights of their client? Let’s explore another important aspect of a Traumatic Brain Injury case that the insurance companies will attempt to hide the necessity of from victims.
What’s necessary to try a TBI case to a successful verdict?
Even ten years ago, there were nearly no psychological evaluations or any kind of neurological tests that could be considered viable for use during trial when it came to Traumatic Brain Injury; if the victim could walk and speak, a decade ago this would potentially harm their case, despite any pain they were in for any length of time. In recent years psychological testing in victims has, fortunately, advanced to the point of being able to prove mental deficit, painful symptoms unable to be seen by the eye, and evidence of brain damage (beyond what diagnostic imaging can provide), are due to a Traumatic Brain Injury sustained in an accident.
1. Expert witnesses
Psychologists, social workers, and other mental health professionals can confidently and expertly testify in court on behalf of victims. They can provide expert testimony that the victim’s impairments (inability to focus, dizziness, slurred speech, mental anguish, depression, and PTSD) are all due to the brain injury they sustained in an accident and not due to something unrelated. These professionals are known as expert witnesses due to the nature of their profession and their professional experience.
2. “Before and after” witnesses
“Before and after” witnesses may also provide insight to further drive home the expert testimony. Those who know the victim best can provide impactful, emotional insight to a jury about who their loved one was before they became injured. This emotional testimony, however, should not be heavily relied upon when fighting for the rights of the client. An attorney cannot ever anticipate the jury’s reactions to anything, and must always rely on their own knowledge, expertise, and research, research, research before getting in front of the judge.
3. Family and friends
When it comes to protecting the client in a brain injury case, it’s important that the lawyer work closely with the family of the injured victim, should they seek to be involved. Family and friends may provide testimony during trial, if necessary. The lawyer will decide if putting a family member or a close friend on the stand could benefit the victim’s case. A family member or friend close to the victim would be able to speak to who the victim is as a person, and how much they lost due to their accident: mentally, emotionally, and physically.
The importance of psychological and mental evaluation in TBI cases
This is why mental and psychological testing is of utmost importance as well, as mental health professionals can attest to the fact that the victim cannot perform simple tasks such as focus on what their attorney has to say, and will require lifetime or at the very least, an extensive amount of medical and mental health care to return to any aspect of normal life.
The Shaked Law Resource has all the facts on TBI
Even though Brain Injury Awareness month as ended, our discussion of TBI on the Law Resource has not. We’ll continue to provide a deeper look into the legal side of TBI through writeups and video guides, as well as continuing to look at case law, the importance of precedent and prior experience when trying brain injury cases, and offer our readers even more insight into what the insurance companies try to keep from victims. On top of all of this, we’ll continue to present nothing but the facts from the perspective of a double Board Certified Personal Injury lawyer whose successfully tried and won countless TBI cases for clients.