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Becoming a Neurolawyer: Developing the Knowledge and Skills to Win
by E. Marcus Davis

Introduction:

The odds of becoming a good neurolawyer are a lot higher if you just let yourself be one. In other words, the only courage you need is the courage to begin. You do not even need a lot of courage. Just for today. You simply need to put one foot in front of the other and start studying, buy some books, ask a friend or a colleague for advice, go on the Internet, and take a case! Keenan, George, Jeff, Phil, Pete, Rex, David, Michael, and I would be infinitely flattered and glad to help you in any way possible. None of us will turn you down. I promise. Just ask for help. One of my favorite quotes is from Michelangelo: "The greatest danger for most of us is not that our aim is too high and we miss, but that it is too low and we reach it." Think about this: "Just show up, take it a step at a time, maybe it won't be so bad!"

Even an experienced litigator might find preparing and winning his first brain case a daunting task. Many lawyers are driven away from this type of case for one reason or another. When a lawyer first receives his client's medical records from a hospital and suddenly has two banker's boxes full of records, the task at hand may seem overwhelming. When the lawyer then begins a perusal of these documents, he realizes that most of these records are completely illegible, not only containing poorly written notes, but riddled by abbreviations that do not even hint at their meaning. Yet the lawyer perseveres and continues to dig through this mountain of paper. Finally, he finds a radiologist's report. The situation seems to be improving as he realizes that he can actually read this typed report. The only problem is that the radiologist's notes indicate something along the lines of the brain was contused on its inferior anterior surface and over the surface of the temporal lobe was a subdural hematoma; there was a bruising over the inferior aspect of the temporal lobe and anterior part of the temporal lobe, as well as the inferior temporal lobe gyrus. While this sounds serious, the novice neurolawyer would find it hard to discern the actual extent of injury to his client from this account. With so little understanding of the brain injury/medical aspects of the case, many lawyers would pass this case on to a more experienced attorney. But wait, with hard work and perseverance, you can handle and win this case yourself.

Another potential brain injury case may present itself differently; a client arrives claiming a soft tissue injury and mentions as an afterthought that he has suffered memory problems since he was involved in a minor automobile accident. The client has no visible injuries and appears to be in good health. In this case, the inexperienced lawyer might decline this case because he feels the client is either a hypochondriac or attempting to push a frivolous claim. However, the client may actually suffer from a mild to moderate brain injury, a serious impediment that may severely limit a person's ability to work, function, and lead a normal life. The client might lose hope after failing to secure a lawyer interested in pursuing a soft tissue case and would thus never be compensated for his or her life-changing injuries. In a circumstance like this, the lawyer may even be the first professional to suggest the type of testing which could disclose a traumatic brain injury.

As trial lawyers, we need to be aware of the frequency of brain injury that occurs simultaneously with more obvious bodily injuries. Furthermore, we need to be aware that brain injury can occur when no exterior injuries at all are present such as in a coup-contra coup injury or an acceleration/deceleration injury. Often, doctors make this same mistake. Because they see no exterior evidence of brain injury such as a skull fracture, they will often negligently conclude an examination having only taken skull x-rays, which are not sufficient to discover soft tissue injury to the brain, but are more suited to uncovering skeletal injury. When an inexperienced lawyer finds that a physician failed to discover a brain injury, he may assume that this study was conducted correctly and propose no additional testing of brain function, even in the presence of signs and symptoms of brain injury such as attention concentration problems, memory deficits, emotional lability and the like.

The purpose of this paper is to make the neurolawyer aware of the pitfalls and opportunities of this type of litigation and to make the difficult task of pursuing this type of case to fruition more successful. When a plaintiff's attorney faces defense lawyers who specialize in cases involving complicated medicine, medical providers that often fail to diagnose brain injuries, and the great expense and risk of trying these cases in a post tort reform world, he must have s much knowledge as possible about to how to succeed in spit of these impediments.

Initial Case Review:

In order to make a living as a neurolawyer, one should consider establishing a relationship with a trusted member of the medical profession, be it a doctor, nurse, or neuropsychologist, acting as case reviewer. The purpose of this relationship is multifaceted.

A case-reviewer should be able to help the lawyer decide which cases are worth pursuing

Evidence of brain injury must be found, or referral to an appropriate diagnostic specialist such as a neuropyschologist must be made to determine if a brain injury really exists. Especially when there is a question of deviation from the standard of care, it is essential that the lawyer be aware of whether or not any standard of care mistakes have been made. While this topic will certainly be covered by expert..

 

Read the full article >> Becoming a Neurolawyer [pdf]


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