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How to Select a Lawyer

by E. Marcus Davis

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When quizzing the lawyer about his knowledge of brain anatomy, it would not be a bad idea to ask the lawyer to briefly explain his or her knowledge about brain anatomy and the mechanics of traumatic brain injury. Lawyers should know that the brain is suspended in the skull and surrounded by cerebral spinal fluid. The brain is not firmly affixed to the skull but is floating in cerebral spinal fluid and is subject to being thrown or bounced around inside the skull in an acceleration/deceleration injury. The interior of the skull is not smooth but sharp and has boney protrusions. These ridges can injure delicate brain tissue which has the consistency of oatmeal or jello in an impact. It is not necessary to have a blow to the skull to cause a brain injury in acceleration/ deceleration such as in a car wreck, a fall, or even in a “shaken baby” syndrome where a baby is shaken and brain injury results. Loss of consciousness is not necessary for a brain injury to occur. Frequently a client will not know that they have lost consciousness, because they were unconscious and have no memory of the event or of being unconscious. Sometimes they will report feeling dazed and confused after the injury and this is sometimes what people whom bystanders have seen lose consciousness report really happened. The lawyer should have some basic knowledge about the structures of the brain: such as, neurons, axons, dendrites, cerebellum, ventricles, cerebrum. They should have basic knowledge about anatomy of the brain as it relates to brain function. The lawyer should understand concepts like loss of concentration, executive functions, sleep disturbances, word search problems, depression, inability to stay on task, distractability, auditory and visual memory, sequencing, etc. as these terms relate to traumatic brain injury. The lawyer should demonstrate a basic knowledge of the testing, both neuroimaging and neuropsychological used in brain injury cases. The lawyer should be able to explain in general terms, MRI, CT (cat scanning), QEEG (brain mapping), PET scanning and how neuropsychological testing works. The lawyer should demonstrate that he understands the mechanics of a sheer/strain or rotational injury to the brain and an acceleration/deceleration mechanism as well as excitotoxicity when a brain cell is subjected to trauma and chemical changes occur, which further damage the brain. A lawyer should demonstrate basic knowledge about skull fractures, contusions fo the grey matter, laceration, or tears of the brain, defuse injury of white matter of the brain, intracranial hemorrhages, increased intracranial pressure, epidural, subdural, and intracerebral hemorrhages, hydrocephalus, ischemic brain injury, hypoxia, anoxia, epilepsy, excitotoxicity injuries, tinnitus (permanent ringing or buzzing in the ears), etc. A lawyer should demonstrate knowledge that many brain injured people have normal CT and MRI scans, because the injury to the brain tissues are on a microscopic level, and the lesions are too small to be demonstrated on an imaging study. PET Scanning which shows glucose metabolism in the brain may demonstrate injuries where MRI or CT fail. The lawyer should indicate his knowledge that a mild brain injury does not necessarily mean a mild deficit in function for those people who operate in careers which require peak mental performance ex. air traffic controller. The attorney should be able to discuss how a brain injury causes sleep disorders either from micro seizures or simply the healing process required when a brain is injured, and the fact that partial insomnia produces sleepiness, feeling stressed, irritability, less capability of meeting challenges, or experiencing pleasure, reduced concentration and memory, fuzzy thinking, reduced motivation, depressed mood, and slowed reaction time. A lawyer should be familiar with the Halstead Reitan test battery or Luria-Nebraska Neuropsychological Battery (LMNB), or other such batteries and the functions of at least some of these tests used in a neuropsychological test battery.

NEUROPSYCHOLOGISTS

The attorney should demonstrate a knowledge of neuropsychologists, and how to select one with the appropriate credentials, and who has a track record as being an effective advocate in a litigation setting. The attorney must demonstrate to the client that a neuropsychologist must have completed at least one year of post doctoral training in their specialty within a medical school or hospital setting. It is better that the neuropsychologist is board certified. The neuropsychologist should have taken courses in neuroanatomy and behavioral neurology in a medical school setting so that they will be able to offer opinions about causation in brain injury cases and about neuroanatomy. Such medical testimony is allowed in some states such as Georgia. Neuropsychologist who have published papers, book chapters, or text books are preferable. Neuropsychologists who have been invited to speak at national or international conferences or seminars in their specialty are preferable. Neuropsychologists with teaching or faculty appointments at a University medical school or a well known rehabilitation facility such as Shepherds Center or Craig Center are preferable. A neuropsychologist should have forensic experience in both plaintiff and defense cases. The neuropsychologist should be well respected by peers within his/her specialty, and by plaintiff and defense lawyers. If the neuropsychologist is known solely as a defense or a plaintiff’s witness, the plaintiff is not served well. The neuropsychologist should devote a substantial portion of his practice to patients with traumatic brain injuries, rather than doing an occasional neuropsychology case mixed with family therapy or something else. The attorney should be able to explain to the client what the neuropsychologist does i.e. obtaining a detailed chronological history of the patient’s injury, including information from the patient, significant others, and available medical records. The neuropsychologist should obtain an extensive background history from the patient including; developmental, educational, family history, military, occupational, marital, sexual, medical, and psychiatric history. Observations should be made of the patient’s behavior. The patient’s academic, vocational, medical, psychiatric, psychological, legal, and military records should be obtained and reviewed. A wide variety of specialized tests should be administered to evaluate the patient’s cognitive, emotional, and behavioral functioning. Careful analysis of the test results, using both quantitative and qualitative scoring methods based upon the neuropsychologist experience expertise and training in neuropsychology should be used. Conclusions regarding the patient’s impairments, or lack of such based upon an integration of all of these data bases should be reached. A neuropsychologist should offer an opinion about the patient’s prognosis and long term cognitive, behavioral, and emotional difficulties. The neuropsychologist should be able to make recommendations about treatments that are needed such as; rehabilitation, psychiatric treatment, cognitive remediation, to improve the patient’s quality of life and to minimize the effects of the patient’s impairments upon his/her daily functioning. The neuropsychologist should determine the effect of the patient’s impairments upon the family. The neuropsychologist should be willing to make referrals to medical doctors who can prescribe appropriate medications such as Tegretol, Phenobarbretol (for seizures), anti-depressants, etc.

TRIAL STRATEGY AND PREPARATION

The client of the attorney being interviewed should ask the attorney what his strategies would be to develop the case for trial, for example: the attorney should express familiarity with the technique of using spouses, friends, co-workers, and significant others to offer anecdotal evidence about the effect of the brain injury on the survivor to the jury. Oftentimes these lay witnesses are more believable to the jury than neuropsychologists who are dependent on psychological jargon, which may not be particularly credible to a society in which psychologists are not held in particular high esteem in a legal setting. The rarely successful “insanity defense” as presented by psychologists has probably caused much erosion of the credibility of the profession of psychology in the forensic setting of jury trials.

The attorney should be asked about how the attorney would prepare the client for his deposition. The client should ask if the lawyer would recommend using a diary or entry notebook to document the effects of the injury over time so that the client would be able to present these anecdotal experiences to the jury a year or two years after the injury when the case goes to trial. Some brain injured clients are “high maintenance” because of the irritability, bad temper and emotional liability sometimes associated with traumatic brain injury. Clients sometimes are mistrustful of their attorney, so counsel should attempt to keep clients fully informed of the progress of the case and not cause clients to have unrealistic expectations. It is advisable for the attorney to establish a close relationship with one or more significant others in the clients life to act as a liaison to act as a bridge between the attorney and the client during periods of emotional fragility or lability. The attorney should caution the client not to withdraw as is often the case in traumatic brain injuries, but to try to remain connected to friends and family who will be able to witness the client’s activities and status and testify to his/her disabilities at a later time. The attorney should mention to the client the particulars of how the client will be prepared for deposition or trial such as being prepared to make a good impression through proper dress and personal hygiene, politeness, speaking clearly, answering questions briefly, telling the truth, not embellishing, trying not to memorize testimony by vote, stop speaking if an objection is made, not becoming angry, excited, nasty, or aggressive to opposing counsel, not joking around or using inappropriate behavior, not chatting with the opposing party or lawyer.

A substantial award by verdict of settlement will permit the brain injury survivor to obtain the funds necessary for costly treatment and rehabilitation and will allow the survivor of brain injury to begin enjoying life to some degree without the stress of constant worry about financial concerns. Choosing the best Traumatic Brain Injury attorney can promote this goal.

The attorney should express a willingness and demonstrate an ability to work together with the medical profession to promote the interest of brain injury survivors. The attorney should understand that he is a part of a team of professionals whose purpose it is to help the TBI survivor and make a difference for the survivor in a positive way, just as the medical profession is attempting to achieve the same results.

LIFE CARE PLANING

In case of a severely disabled traumatic brain injury survivor, the attorney should be familiar with the profession of the life care planner. There are certain professionals who prepare plans which outline in detail all of the elements of medical and rehabilitative facilities, equipment, and rehabilitative devices, medicines and therapies, which are necessary to care for brain injury survivor over his/her life time. The data from these life care plans comes from interview of the client, review of all of the medical records, and review of the medical care providers and consultation with providers of goods and services related to care and treatment. Future needs including; medical evaluations, therapeutic treatment, residential treatment programs, living alternative support care, educational and vocational training, medical equipment and supplies and adaptive equipment are addressed. Adaptive living environments and personal equipment are identified in the life care plan. This information is presented in the form of a cost report. After the individual cost items are detailed, a summary is prepared which shows the costs that occur on a one time basis and are not repeated. The life care plan can be given to an economist who can calculate the cost of care over the injury survivors life reduced to present cash value. This data can be presented to the jury in an effort to obtain full economic recovery for the client. Sometimes the most significant financial aspects of recovery for brain injury client will not be related to the need to medical attention, but more likely to the type of structured environment, including home, adaptive facilities, transportation that many individuals who have lost the ability to be in charge of their own lives now require, because of the various cognitive sequelae of traumatic brain injury. Proper care often will make a significant difference in the long term outcome in individuals with traumatic brain injury. The important task performed by the rehabilitation team and the attorney is to determine what an individual will need to have a healthy fulfilling life for the remainder of his/her life.

FEE ARRANGEMENTS

Most trial lawyers work on a contingent fee arrangement. The range of the fee may be from 25% to 50% of the total recovery plus expenses.. Many of the better trial lawyers are associated by other lawyers who do not specialize or do not feel they are competent in the traumatic brain injury field. When you hire John Smith the lawyer with the store front office in your neighborhood, he may then in turn associate another lawyer who is a trial lawyer. Frequently the first lawyer will receive a third of the fee from the second lawyer. He may or may not do much work on the case. These arrangements are common and should not result in your having to pay a larger fee. The problem for the traumatic brain injury consumer of lawyer services is that if a first lawyer is hired who hires a second lawyer, the second lawyer is less able to negotiate on the amount of fee that he/she requires, because typically a third of the fee is being given to the lawyer who does not fund or work on the case to any great extent. Oftentimes a traumatic brain injury lawyer who is hired directly will work for a third and in rare circumstances even 25%, if he/she does not have to pay a referring lawyer a percentage of the fee. Thus, it is best for the client to try to find a good traumatic brain injury lawyer directly. A caveat to this is that if the first lawyer is a friend of the family whom you trust, perhaps this first lawyer will be useful in looking over the shoulder of the second lawyer to make sure everything is being handled appropriately. Most fee contracts will provide that the client is liable for expenses. These will be deducted from the recovery. The State Bar of Georgia Rules requires that a firm require in addition to the fee this language even though in practice many lawyers made it a policy to not insist on collecting expenses if the case is lost. There is an opinion floating about that this language is no longer required. I would recommend that you have the lawyer tell you specifically whether he/she would enforce the expense provision of the contract in the event the case is not successful in the presence of your witness, such as friends or family members. Most trial lawyers recognize that they have a duty to the public to represent people who are not financially capable of fighting the monied interests of insurance companies and corporations on their own terms. Most successful trial lawyers have built up capital reserves to apply to use for the benefit of their clients as part of the service to the client, yet expecting to be paid this money back if the case is successful. Often times a trial lawyer will have to spend even as much as a $100,000.00 or more on a complex case, paying expert witnesses, court reporters, accident reconstructionists, life care planners, neuropsychologists, and other experts. You will be charged for copies and postage. I would recommend that a client not hire an attorney who insists on you paying the expenses as you go, unless you can readily afford it or perhaps negotiate a lessor fee in turn for your funding the case. The funding of the case does add an element of risk for the trial lawyer, and my belief is that this justifies a somewhat higher percentage contingency fee contract.

You should make sure that the fee contract provides for an exit clause in the event that either you or the lawyer become dissatisfied with the case. A fair exit clause would provide that if a lawyer abandons the case or withdraws from the case, the lawyer on his/her initiative the lawyer should not insist on a fee. Expenses probably should be reimbursed at the end of the case, not at the time of severance of the relationship. If the client wishes to terminate the relationship, the contract should provide that the lawyer should receive a percentage of whatever offer has been made if any or an hourly rate for the work that has been performed.

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