Discussions about cases involving traumatic brain injury (TBI) typically involve a lot of complex medical and legal terms that an average person will not necessarily understand (e.g. epidural, subdural and intracerebral hemorrhages, excitotoxicity, hypoxia, anoxia, ischemic brain injury, hydrocephalus, neurophysiological testing). Some lawyers use such terms without explaining their meaning in order to sound like more of an authority, to avoid answering a question, or simply because it does not occur to the lawyer that an explanation is necessary. Your lawyer should be able to explain complex medical and legal terms using plain language, and should answer direct questions with direct answers. If a lawyer cannot explain your case to you using language you can understand, you should question whether that lawyer can explain your case to a jury.
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 are capable of representing 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 learns how to handle a brain injury case. Large insurance companies with huge budgets for legal defense costs hire bright, often ruthless lawyers to defend their interests. A lawyer who has handled brain injury cases will be familiar with the defenses, tricks, and legal theories that such lawyers use, and will know how to deal with them. The law in several areas important to brain injury cases is constantly evolving, and new advances in medical technology imact the way a case should be prepared and presented. Only a lawyer who regularly practices in the area by handling cases and attending seminars on such topics will be familiar with those changes and prepared to deal with them.
Find out how many cases the lawyer handles at any one time
Many personal injury lawyers handle a large volume of cases at once, with injuries ranging from minor cuts, bruises and scrapes to catastrophic injury and death. 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. However, because of the complexity of TBI cases, it is unlikely that a lawyer already handling cases for 100 other clients is going to be able to give you the personal attention your case needs and deserves. Also, some lawyers delegate responsibility for communicating with clients to assistants in order to be able to take on more cases. While there is nothing wrong with using paralegals and legal assistants to perform appropriate tasks, certain functions should not be delegated in TBI cases. If a lawyer is not prepared to commit to personally returning your calls within a reasonable time (a day or two), you may not have the right lawyer.
Observe whether the lawyer exhibits signs of patience and compassion.
Clients who have suffered brain injuries need personal attention. In addition to impairments caused by the injury itself, it is not uncommon for both the injured person and close friends and family to struggle with feelings of anger, frustration, irritability, rage, anxiety, and/or depression. The injury can cause devastating effects on relationships. Frequently spouses feel as if they are no longer married to the same person, and divorce is common. An attorney needs to understand that you and those close to you are not at your best, and must have the pateince to listen and to make an effort to fully understand the impact your injury has had on all aspects of your life. The lawyer needs to be prepared to spend time educating the client and his or her family on the injury and the legal process, and should 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.
Ask yourself whether the lawyer appears to understand brain injury.
Brain injury cases require an understanding of the science of brain injury. 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 serminars and conferences specifically devoted to brain injury. A lawyer who handles TBI cases should be familiar with and able to explain the anatomy of the brain and the mechanisms of brain injury. Medical experts classify 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 used to classify and quantify the injury. The lawyer should also be prepared to work hand in hand with treating physicians as part of a team with the common goal of omproving the injured person's quality of life.
Ask about the lawyer's ability to identify and involve the right experts.
Successful TBI cases often require the use of 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. A neuropsychologist uses detailed patient histories, together with a battery of carefully constructed tests, to reach opinions regarding the nature and extent of a patient's impairments, and can recommend treatments needed to minimize the effects of those impairments. Life care planners assess and describe in detail the future medical treatment that a TBI patient will need over the course of his or her life, including the types and frequency of evaluations, in and out paient treatment programs, education and vocational rehabilitation, and medical equipment and procedures, together with associated costs. A lawyer must select experts with appropriate credientials, and must work with the expert to make sure opinions are sufficiently reliable to be presented to a jury.
Ask the lawyer how he or she typically builds a case.
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 impacted the injured person's life. Any description of how to build a case should include a reference to the importance of these so called "lay" witnesses. A savvy lawyer will encourage the injured person to resist the temptation to withdraw from relationships after the injury -- not only is such withdrawal psychologically harmful to the client, but it reduces the impact of witnesses who can describe compelling "before" and "after" examples of the effects of the injury. Often a seasoned attorney will askt he client and close friends and family to create a diary of the impact of injury on daily life. Such diaries will assist in presenting an accurate picture months or years later at a trial, when memories of specific incidents and sequences of events would otherwise have faded.
Find out how the lawyer plans to deal with subrogation claims and liens.
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 our of any recovery your lawyer is able to obtain from the person or corporation at fault for your injury. Ask the lawyer whether he or she is familiar with the rules regarding such claims, and how she typically handles them. The law in this area is highly technical and has changed dramatically within the last few years, and is still evolving, so it is important to find an attorney who keeps track of changes that can impact how much of your recovery you will be able to keep.
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. Keep in mind that large verdicts are inevitably followed by appeals, which can result in a reduced awards, settlements, or new trials, so the amount actually recovered can be far less than the advertised verdict. Also, while it is important for a lawyer to have experience taking cases to trial and winning, and while a lawyer should be proud of having obtained good results, some lawyers who like to brag about large verdicts are too quick to push a case to trial when it is not in the client's best interest. After all, after a loss at trial, a lawyer can move on to another case, but the client will have lost the only chance at a recovery he or she will ever have. Verdicts in other cases can help predict what your case is worth, but only when the facts and issues in those cases are similar to yours. Otherwise a different case with different facts has no predictive value.
Find out how (and how much) the lawyer is going to charge.
TBI cases are normally handled on a contingency fee, meaning that if there is a recovery, the lawyer will take a percentage as his or her fee, and if there is no recovery no fee is owed. The amount of the contingency fee can vary depending on the facts of the case, the complexity of the legal issues involved, and other factors, but typically ranges between 25% and 45%. In addition to fees, it is important to understand how expenses will be handled. Costs associated with pursuing a TBI case, including hiring needed experts, can often exceed $100,000. Because most clients are not able to pay those expenses as they are incurred, most experienced lawyers will agree to advance such costs and deduct the amount advanced from the recovery. Some state bars require that the client remain responsible for these expenses. Whether your jurisdiction has this requirement, most experienced TBI lawyers have a policy not to insist on collecting expenses in the event there is not a recovery.