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Traumatic Brain Injury and Accident Law – Part 1

Traumatic Brain Injury and Accident Law – Part 1


When a Traumatic Brain Injury occurs and the case moves to the legal phase, after the victim is medically stable, a Personal Injury lawyer will be entrusted with protecting their rights. In fact, Personal Injury lawyers see their clients during the worst, and most fragile time in their lives (TBI injuries have long recovery periods that may overlap with the legal side of the accident).

This article will answer all the questions those who have suffered a TBI, or whose family member has suffered this type of accident may have when confronted with the prospect of having to pursue their legal rights.

  • How does a Personal Injury lawyer protect TBI victims’ rights?
  • Why are lawyers taking on TBI cases they can’t handle?
  • What happens when a TBI case goes to trial?
  • What are the types of witnesses necessary for trial?
  • Why is a TBI lawyer’s experience important when pursuing legal action?

How does a Personal Injury lawyer protect TBI victims’ rights?

A lawyer’s protection of their clients’ rights doesn’t extend only to obtaining the compensation they rightfully deserve. Throughout the legal process the lawyer must protect their client from the insurance companies’ notorious bully tactics, and from the defendant’s counsel in any number of ways. For a brain injured client, the lawyer is there to ensure that their injury will be taken seriously and therefore justly compensated in a court of law.

Traumatic Brain Injuries occur deep within the brain. That means this type of injury doesn’t always have visible symptoms. It can even be considered an “invisible” injury once the victim has healed from any other injuries they suffer in an accident. Broken bones, cuts and scrapes, and bruising all may disappear with little to no scarring after a period of healing, physical therapy, rest, or a combination of all three.

With TBI, that’s usually not the case. The injury persists within the brain, even after the injured victim has had time to heal visibly. Traumatic Brain Injuries are notoriously difficult to fully recover from, and can often become lifelong. Persistent, chronic dizziness, vision changes, migraines, and the inability to focus are just some of the most common and long lasting effects that a TBI can have on a victim after an accident. So, when a brain injured client and their family seek to retain a lawyer, he or she will hold the “burden of proof”. This means they will have a duty to prove that the visibly “uninjured” client is not “fine” whatsoever and is actually suffering from serious and lifelong medical issues as a result of their accident.

Why are lawyers taking on TBI cases they can’t handle?

Some lawyers tout their ability to take on a case they simply aren’t cut out to see all the way to verdict (many TBI cases must go to trial). This happens too frequently, and it’s because many law firms hire “paper pusher” lawyers. These lawyers are merely adjusters, and treat their clients as numbers,. This cases the firm itself to become a claim factory. The client should never be sent away with the minimum amount of compensation just to get them out the door. These firms do not have the successful results they claim to, no matter how much they advertise otherwise.

The truth of the matter is this: TBI claims are extremely difficult to navigate if the lawyer representing the victim isn’t familiar with the legal process that surrounds proving that the injury does in fact exist, and that it’s caused their client to lose not only quality of life, but the ability to function. Many law firms simply don’t want to take the time to do the work on the client’s behalf.

So what needs to happen in order for a Personal Injury lawyer to obtain compensation, and the maximum amount at that, on behalf of their brain injured client? There are several steps that the lawyer must go through.

What happens when a TBI case goes to trial?

What are these steps we just mentioned? Let’s start with the necessity of competent, honest witnesses. A witness must be someone who can attest (under oath, in front of a judge and jury if necessary) that they know the victim well and can provide weight to the injured party’s claim. This doesn’t mean a witness can take the stand and ramble on and on about how injured the victim is in an effort to prove their point. What the witness says during trial must be well prepared and truthful. That’s why a lawyer must have the experience to prepare everyone involved for trial. Remember: honesty and credibility of everyone involved in the case is the most important aspect of any claim, and lack of it can kill a case.

Within Personal Injury law, there are specific aspects of the case that the witness must be familiar with beforehand. The Personal Injury lawyer will meet with their witnesses before the trial (or mediation) and explain everything they must know before they speak on behalf of the victim. In some instances, they will be briefed on what not to say, if the lawyer feels this approach is necessary. If the witness has any questions or is unsure or anxious, the lawyer can walk them through the process with their insight and expertise.

What are the types of witnesses necessary for trial?

  • Before and After Witnesses: For brain injured clients, a change in their abilities, function, and quality of life are some of the most drastic things that frequently occur. Friends, family, and even former employers may be asked to testify on behalf of the brain-injured victim to provide insight on what the victim was like before they became injured, and how much they’ve changed since.
  • Expert Witnesses: In an ER setting, all studies necessary to prove a TBI in court may not have been performed. This is because in the Emergency Room, only lifesaving procedures are performed. In order to try a traumatic brain injury case in court successfully, a specialist must take specific imaging that’s more advanced than that performed in an emergency setting. A specialist can provide more insight on behalf of the victim as to the extent of their injury and how it dramatically altered their life for the worse.
  • Accident Reconstruction Expertise: Often, accident reconstruction experts are acquired to prove who was at-fault. Utilizing a neurological specialist and those who know the victim best isn’t always the extent of what’s necessary to fully serve justice in a TBI case. Accident reconstruction experts can recreate the scene of an accident down to the most minor details, and therefore show the judge and jury in nearly real-time what occurred and why the victim became permanently injured.

Why is a TBI lawyer’s experience important when pursuing legal action?

When it comes to TBI, a victim has the right to seek legal representation. Within Personal Injury law, many accident lawyers will claim to have the knowledge necessary to see a Traumatic Brain Injury case to verdict, but have never actually taken a single TBI case to trial. On top of this, it’s the insurance companies that have convinced accident victims that if their injury isn’t a visible one (broken bones, amputations, use of a wheelchair, etc.), they have no legal recourse. This lie is meant to discourage victims from pursuing their rights.

That’s why it’s important to consult with a Board Certified lawyer after a Traumatic Brain Injury; these lawyers make up only 1% of lawyers in the country, and have the most experience seeing cases to successful verdicts that yield maximum compensation for accident victims.

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