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How to Select a Lawyerby E. Marcus Davis
Chloe’s parents, Tom and Sharon, unexpectedly find themselves at Hughes Spalding Children’s Hospital in the intensive care unit. Chloe, age 10, and Tom were walking home from Piedmont Park, pushing their bicycles, when a speeding van ran a red light and struck Chloe in the crosswalk, throwing her twenty feet onto the pavement. Chloe sustained a skull fracture and is now being treated at Hughes Spalding for seizures. Her prognosis was at first unknown. After a week she has apparently recovered, and she is sent home with instructions to see her pediatrician as needed. When Chloe returns to school, this formerly gifted student gets into academic trouble. She is constantly exhausted. Instead of playing sports after school, she goes straight to bed. Tom and Sharon want to pursue a claim, but they don’t know where to start. They talked to their old friend Nick, a criminal defense lawyer, for advice on how to find the best lawyer for the injury case. She has not been referred to a neuropsychologist.
Kim is driving home from work in her Jeep Cherokee, when an elderly man runs a red light and broad-sides her top heavy Cherokee flipping it over. Her head strikes the windshield, and she briefly loses consciousness. She is taken to the emergency room, where she is examined. She is oriented times three. She knows who she is, where she is, the date, and she can name the president. She is sent home with no instructions, except a printed head injury form. After that she begins experiencing fatigue, problems with memory and concentration, headaches, gets lost and confused easily, has trouble organizing her daily tasks, and paying attention and concentrating on her job as a graphics designer. Her mood changes easily. Sometimes she becomes rageful, and other times she becomes sad, anxious, and listless. Her energy level is diminished, and she begins going to bed as soon as she gets home from work, just to have the energy to get up in the morning to get to work on time. She hires a lawyer for her “whiplash injury.”
Rose, an artist whose medium is acrylic painting, is rear-ended at an intersection. The seat back on her Chevrolet breaks at the scene and she feels dazed. An ambulance rushes to the scene, but she, feeling stiff and sore, turns it away and goes to work. Later that day, she develops a headache. In the following weeks she begins feeling fatigued. She has trouble thinking, acting, speaking, and reading. She has trouble finding the names for objects, and her speech pattern is more awkward as she struggles to find the right word to use. She feels tired all of the time and wakes up frequently during the night. She goes to bed earlier but wakes up exhausted anyway. She can not come up with a concept for and complete a painting anymore. She angers more easily and becomes sad and depressed more frequently. After three weeks, she sees her general practitioner, who tells her that she has probably sustained a concussion and that her symptoms will subside over time. She hires a lawyer to pursue her “whiplash claim.”
These scenarios are based upon real cases and are common fact patterns in the world of traumatic brain injury. It is the author’s opinion that thousands if not hundreds of thousands of traumatic brain injuries go undiagnosed every year in the United States. Emergency room doctors frequently fail to diagnose would-be moderate brain injuries. Even neurologists miss these diagnoses. Even in the cases where brain injuries are diagnosed, usually just as a concussion, the patient frequently does not know what medical follow-up care is needed, and the injury goes undiagnosed and untreated. Oftentimes the effects on the immediate family, friends, and co-workers are devastating as the personality of the injured person changes. Frequently, the spouse may feel like they are now married to a totally different person. Stresses and strains on marriages and relationships with significant others are strained and divorces frequently occur.
The lawyer, who has training and experience in the world of traumatic brain injury, sometimes called a “neuro-lawyer”, is a professional who can and should play a significant role as the case manager in helping to educate the client as to what can be expected with a traumatic brain injury, helping the client seek appropriate testing and treatment, and in the traditional lawyer’s role of assisting the client in obtaining a maximum recovery for his/her claim. In the author’s career, as I am sure in many other trial lawyers’ careers around the country, there are many cases which are presented to the attorney initially that appear to be a minor connective tissue injury case, whiplash and/or a concussion, but with proper diagnosis management, treatment, and aggressive representation, result in six and seven figure results for the clients after a traumatic brain injury is diagnosed. Surprisingly, the clients also frequently are tentatively diagnosed by the trial lawyer, not the emergency room or general practice doctor. The diagnosis is made after referral to a neuropsychologist.
The important question becomes, “How does an ordinary person who is injured know how to find and select the right attorney to represent him or her in a traumatic brain injury case?”
There are no lawyers who are taught the first thing about traumatic brain injury in law school. Training in the areas of caring, compassion, good listening skills, and for the most part even trial advocacy skills are completely lacking in law school. In our judicial system money is power. As a consequence of that bargain, not everybody can have the best lawyers that money can buy. Generally speaking, the lawyers that are turned out by the nation’s law schools, who are the smartest and the best students, go to work for insurance defense and corporate law firms. Some of these defense lawyers, after being fully trained, switch sides and become plaintiff’s lawyers. Some of them genuinely have had a change of heart and want to help ordinary people, but others simply switch sides because they feel they will make more money as plaintiff’s lawyers. The ordinary person who sets about the task of hiring a lawyer, tells his friends that he is going to sue and get justice. Likely, they will be disappointed, because they have no tools or information or knowledge about how to find a lawyer who has the heart, the knowledge, the skills, the tenacity, and the financial staying power to obtain full justice for them. When young college graduates go to law school, they are taught by the case method. Through this method they learn lots of fancy lawyer phrases and jargon, and to you as the client, they can come across as stiff, stilted, completely incomprehensible, and overly impressed with their own vocabulary. One thing you as the traumatic brain injury victim or consumer should understand is that you can almost always tell the truth when you hear it from your perspective lawyer. Do not be buffaloed or bamboozled by the fancy words and the fancy jargon. Ask direct questions and insist on direct, simple answers. After all, your case will ultimately be presented to a jury of people just like you. If a lawyer can not speak in terms understandable to you, he/she will not be able to do that for the jury either.
It is also important to understand that the only justice available to the brain injury victim is, in the end, money. This money in most circumstances is not even paid by the wrongdoer. The money is paid by an insurance company or a corporation. Many of these insurance companies and corporations are mammoth multi-national financial institutions. You, the traumatic brain injury victim, and your lawyer are at best, nothing but a tick on a dog’s back. Even a six or seven figure settlement or verdict for most of these financial entities is nothing but a sneeze in a tornado. The insurance corporation does not care about you, and in most cases they will not be afraid of your lawyer, even if he or she is a good one. To make matters worse, the insurance companies and the corporations are skilled and good at picking lawyers who understand traumatic brain injury, and seel to fight against and minimize the result which you are seeking with your lawyer. Because you have no experience or training in picking a trial lawyer with an excellent track record, the process is a mystery to you. Without some help and guidance, you do not even know the right questions to ask to ascertain the training, experience and track record of your lawyer, councillor, advocate, and champion.
It is the purpose of this paper to try to help you learn the questions to ask to get the best lawyer for you to obtain the best justice in the form of money for you that can be had under the circumstances of your case.
As I have stated, a lawyer does not graduate from law school knowing how to handle a traumatic brain injury case. Most lawyers graduate from law school with only a vague notion of wanting to “help people” or wanting to earn a living, or wanting to pay back their educational loans, or wanting to please mom and dad who wanted them to be a professional, or wanting to be respected in the community, or being able to afford nice cars and nice houses. These notions have nothing to do with getting you where you want to go as a traumatic brain injury victim.
The worthy young lawyer quickly learns that litigating traumatic brain injury cases is hard work. Largely the subject matter must be self taught. It would be wise to ask a prospective lawyer how he or she learned about traumatic brain injury. There are many books, which have been published on the subject. Some of them have been written for doctors, neuropsychologists, or neurologists. Others were written specifically for lawyers. As a first step, the client should ask the perspective lawyer what he or she has read about traumatic brain injury and insist that he or she explain in detail his/her journey in learning the subject matter of the brain injury. Ask the lawyer if he has any books or seminar materials on his shelves about traumatic brain injury and ask to see them. Ask if he or she owns an anatomical model or charts of the human brain.
Another very important criteria in selecting a lawyer, is to find one who exhibits intuitively and objectively the virtues of caring and compassion. You as the traumatic brain injury victim have many signs and symptoms which you are experiencing, which adversely affect your daily life. Your injury affects your job, family, marriage, relationships with significant others, recreation, and every aspect of your life. Your lawyer must have the patience, interest and compassion required to be willing to listen to and care about all of the areas of your life which have been impacted by your injury. You may not be at your diplomatic, interpersonal best. You may be volatile and irritable because of your injury, but the lawyer must be patient with you. If the lawyer is not interested enough or does not have the time to let you educate him/her about all of these areas of your life in which you have been adversely impacted, then he/she will not be able to present your case adequately to the insurance company adjuster, the insurance defense lawyer, or ultimately the judge or jury.
You as the client need to find out if the lawyer is too busy to give you the personal attention that you need and to which you are entitled. Ask the lawyer what his/her case load is. A case load of 20 to 25 cases, if the cases are catastrophic and substantial for the most part, would be a good number. A case load of 20 to 25 cases of soft tissue whiplash cases might not be a good number, because it might demonstrate that the lawyer has not had the opportunity to develop the expertise and track record to represent clients in “big cases”. A lawyer handling 2 or 3 hundred files is not able to give you the personal attention that you need. You need to find out if a lawyer will delegate your case to associate lawyers who are inexperienced or paralegals, or legal assistants. Ask a lawyer if you sign up with him/her as a client who you will be talking to. If you will not be talking to the lawyer, but primarily to assistants, this may not be the man or woman for the job. It is true that successful lawyers frequently are tied up taking depositions, attending mediations, and trying cases. Sometimes they have gone to attend professional seminars, hopefully some of them on the subject of traumatic brain injury. It is key that you are able to talk to the lawyer at the end of the day on a regular basis. Phone calls not returned within a day or two should not be tolerated.
It is important to ask the lawyer, what percentage of his past and present case load concern representation of clients in traumatic brain injury cases. If the number is very small, this might not be a good sign. The word gets out in the community as to who the lawyers are that are handling a number of traumatic brain injury cases, and these lawyers quickly develop a case load of traumatic brain injury cases because of their expertise and track record in such matters. Much of the education for the trial lawyer, who wants to successfully represent clients in brain injury cases, is in attending regional or national seminars on the subject. Ask the lawyer to specifically tell you what seminars that he/she has attended and when. Ask to see the seminar handouts or brochures. The seminar presenters will teach trial lawyers such things as brain anatomy and function, mechanics of traumatic brain injury, diagnostic techniques, post traumatic stress disorder, neuro physiological testing, imaging studies such as CAT scan, MRI, CT, TBI, sleep disorders, presenting traumatic brain injury cases at trial, special needs trusts, how to present opening statements in a brain injury case, how to conduct jury selection in a brain injury case, direct and cross examination of medical experts, seizure disorders following traumatic brain injury, life care planning, etc... Ask the lawyer what continuing legal education (CLE) credits he/she has obtained by virtue of attending traumatic brain injury seminars. Some lawyers are so interested in brain injury cases that they have authored articles from medical or legal publications, newsletters, and books. Others have developed web sites which deal with the subject matter of traumatic brain injury. Ask for the web site address. Ask if the lawyer has published anything about traumatic brain injury, be it articles, book chapters or seminar handouts.
Some attorneys have given speeches at medical or legal seminars on the subject of traumatic brain injury. Ask the lawyer if he/she has ever given a speech to professional organizations. A sure sign of a lawyer who is committed and dedicated to representing traumatic brain injury victims, is a lawyer who has made donations to brain injury organizations or has been involved in fund raising for the Brain Injury Association of Georgia or Brain Injury Association formally known as National Head Injury Foundation. Ask the lawyer if he/she has had any experience with traumatic brain injury among his/her family or friends. Frequently, this personal experience will lead to interest and compassion about the problems and plight of brain injury survivors.
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© 2006, E. Marcus Davis, P.C.