Fiber Evidence: Its Future Use In Criminal Litigation

September 23rd, 2009 by admin No comments »
E. Marcus Davis
Davis, Zipperman, Kirschenbaum & Lotito, L.L.P.
918 Ponce De Leon Ave., N.E.
Atlanta, Georgia 30306
Phone: (404) 688-2000
Facsimile: (404) 872-1622

“Fiber Evidence”

In June 1983 TRIAL began a seven-part series: The Law in the Future. The Hon. Orville Richardson began the series with an overview of the law as it may be circa 2000. Prof. Thomas F. Lambert followed him, proffering in the July and August issues an extensive look at tort law. This month Mark Kadish, E. Marcus Davis, and Rosalyn Suna Kadish pool the evidence they have gathered about the future of criminal justice.

Still to come: Larry Gordon and Allan Onove guide a tour through the law office of the future; Prof. James Jeans examines the changes to come in legal education; and finally, Stanley Preiser, Monty Preiser, and Sherry Goodman predict how developing technology will affect courtroom tactics and techniques.

Of all the areas of change that will impact significantly on the future practice of criminal law, two of the most significant involve the gathering and use of evidence. Fiber evidence is not new, but advancing technology is enhancing its role in criminal prosecutions, and on a different plane, alterations to Fourth Amendment search and seizure law during the next two decades will bear watching. Other aspects of criminal justice that will dramatically affect the future practice of law include standing to complain, electronic surveillance, and computer crimes.

Fiber Evidence: Its Future Use In Criminal Litigation

The celebrated Atlanta “Child Murder Cases” (State of Georgia v. Wayne Williams) have sparked the interest of the legal community in the prosecutors’ secret weapon-fiber evidence. While many lawyers and laypersons have hailed fiber evidence as a remarkable new tool to aid in prosecuting difficult cases, fiber evidence is not really a new discovery. What is new about fiber evidence is the enhanced ability of the forensic chemist to utilize such evidence as a result of certain technological advances.

Experienced prosecutors have long considered scientific proof the “backbone of every circumstantial evidence case.” Criminal lawyers can expect greater use of fiber evidence in the future not only because of its well-publicized successful use in Georgia v. Williams, but also because of the liberalization of the law of evidence in the area of expert testimony. Many jurisdictions have adopted procedures permitting the trial judge to determine “whether the procedure or technique in question has reached a scientific stage of verifiable certainty” or, in the words of Professor Irving Younger, “whether the procedure rests upon the laws of nature.” The trial court will make the determination based upon the available evidence, rather than by simply calculating the consensus in the scientific community.

Federal Rule 402 provides: “All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by act of Congress, by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority.”

Liberalized evidentiary standards, coupled with modern techniques of fiber analysis, will guarantee a dramatic increase in the future use of fiber evidence.

Because of technological advances, criminal defense lawyers will confront more and more scientific evidence in the future. They must be prepared to understand such evidence. Securing the services of experts to examine evidence, to advise counsel, and to rebut the prosecution’s case is probably the single most important factor in defending a case in which novel scientific evidence is used. Studies show that scientists are fallible—fiber and scientific evidence can be successfully attacked. Although the courts will readily admit scientific evidence, the evidence can be shown to have little or no probative weight. Thus, an understanding of the principles of fiber evidence will be indispensable to the criminal lawyer of the future. With study and the assistance of an expert, a lawyer will be able to understand and effectively present or attack fiber evidence.

To the uninformed, a fiber is a simple object to contemplate; it has certain color, texture, and dimensions. The textile engineer or forensic scientist, however, can glean a wealth of information from a single fiber. Much of this information can be utilized in a criminal case.

The information to be obtained from a fiber can be broken down, from the more obvious characteristics that can be observed by the naked eye (macroscopic examination) to those that can be ascertained only by using sophisticated scientific tools, such as comparison microscopes, polarization techniques, monochromators, microspectrophotometers, and spectral data processors.

Macroscopic examination can reveal the type of fiber and the number of different classes of fiber present in the material and may exclude certain fibers as components of the material. Such an exam may also reveal whether the material is comprised of more than one type of fiber.

Fibers can be further examined microscopically. Microscopic examination will reveal characteristics such as surface scales, cross-markings, swelling, twists, or relatively smooth surfaces. Cross sectional examination reveals the contour of the fiber and pigment distribution.

Fibers are composed of either “natural” animal or vegetable material, and can be further broken down as shown in Table I.

Other information can be gleaned from the way in which fibers are spun, dyed, or woven. Different spinning procedures produce at least 15 types of yarn. Diverse weaving techniques produce at least 42 variations.

Several finishing techniques are used on fabrics and fibers, imparting different finishes and chemicals to the fibers. The numerous techniques by which fabrics, both natural and synthetic, are made can leave a fiber with such an infinite number of characteristics that its signature, vis-à-vis the signature of another fiber, can be narrowed down to a virtual certainty.

The Williams case is exemplary of how fiber evidence will be relied upon in the future and how best to utilize or confront it.

According to Larry K. Peterson, the forensic chemist for the Georgia Bureau of Investigation (GBI) Crime Laboratory, and Gordon H. Miller, the Fulton County (Georgia) Assistant District Attorney who handled the scientific aspects of the case, the case was prosecuted successfully largely as a result of fiber evidence. Peterson based his initial premise on the fact that every person’s environment contains a set of fibers that are statistically unique. Williams was convicted because fibers found on the bodies of several victims matched fibers that were present in his environment: a green carpet and bedspread in his home; the carpet in his Chevrolet station wagon; and several other fibers.

The story of how the fibers were used is fascinating and demonstrates the impact that this forensic technique will have in future criminal litigation. Particularly because there were no eyewitnesses, no apparent motives, and no concrete “leads,” authorities searched the skin, hair, and clothing of each new victim discovered for fibers. Scotch tape, tweezers, vacuums, and other methods produced the fibers. Some of these fibers were even found in the hair of victims who had been floating in the Chattahoochee River for several weeks.

An unusual green fiber, trilobal in shape, and determined to be a carpet fiber, was found on several victims. The carpet fiber in question was extremely rare, making the initial identification difficult, but the unusual fiber worked to the advantage of the prosecution because few households would own a carpet containing such a rare fiber. Had the fiber recovered been a common one, such as white cotton, the evidence would have been virtually useless. Federal Bureau of Investigation (FBI) and GBI agents scoured textile manufacturing concerns to determine who had made the fiber. The fiber was similar to a patented DuPont design, but was finally traced to the Wellman Corporation and to a West Point Pepperell mill in Dalton, Georgia, that had manufactured a limited quantity of green carpet using the unusually shaped fiber. West Point Pepperell had maintained sales records, and it was determined that one out of every 8000 homes in the Atlanta area had one room of green carpet containing the Wellman fiber.

Fibers from a Chevrolet station wagon carpet were found on several corpses. Peterson determined which vehicle identification numbers corresponded to the type of carpet fiber found and determined that one in every 3800 automobiles in the Atlanta area contained the carpet. The Williams station wagon was on the list. Other fibers matching Williams’ bedspread (a flammable acetate fiber, not used in bedspreads for ten years) were found on several bodies. Because the fibers were found all over some of the victims‘bodies, it was determined that: they died in Williams’ parents’ house; they were wrapped in the bedspread; and they were transported supine in the Chevrolet station wagon. Peterson and Miller theorized that the fibers recovered matched the last environment of the victims.

The statistics developed by Peterson and his associates at the GBI crime lab were devastating to the defense. The jury must have concluded that if one in 3800 people owned a car containing the incriminating carpet and only one in 8000 owned the green room carpet, and if Williams owned a ten-year-old bedspread with the correct fibers, he had to be the killer. To some jurors, the statistics alone proved him guilty beyond a reasonable doubt. (The practitioner confronted with such statistics should hire a statistician as an expert witness and study the available articles dealing with the problem of overcoming the misuses of statistical data.)

Using sophisticated scientific instruments and techniques, Peterson compared and matched fibers from the Williams house with fibers recovered from the children’s bodies. Mr. Peterson expected such a match because of the “exchange” principle. This type of evidence can be used in rape and other cases because of the same principle. When people touch other objects containing fiber, the fibers are exchanged in much the same way as paint is exchanged in a collision between cars of different colors. One car leaves its paint on the other.

Fiber evidence can, of course, be used in many types of cases. Microscopic comparison between fibers on the suspect and those obtained from the scene of the crime or victim may be compared. Such evidence is especially useful in crimes of close contact, such as rape, but may also be used in a variety of other offenses. Unfortunately, as a scientific tool, the probative value of this evidence for the defendant is limited. The fact that no matching fibers are found does not demonstrate innocence. As so well stated by Wayne Williams’ defense lawyer, Alvin M. Binder, “Fiber evidence is a one-way ticket to hell for the criminal defendant.” Nevertheless, creative defense lawyers can seek ways to use fiber evidence as a defensive tool.

The emerging trend in federal and state judicial systems toward the liberalization of the standards for admitting scientific evidence is well documented. In the future, the practitioner can anticipate more frequent use of fiber evidence in criminal trials.

If the courts are going to admit such scientific evidence more liberally, criminal defense advocates must educate themselves in these technical fields in order to critically evaluate and negate the weight of the technical proof.

“Slow Strangulation” of the Exclusionary Rule

One does not need prophetic powers to predict further erosion, and possibly annihilation, of` the exclusionary rule. The handwriting has been on the wall during the entire tenure of the Burger Court, and the issue may well be decided before the conclusion of the October 1983 term. The ultimate determination will have a tremendous impact on the future practice of criminal law and procedure.

The Supreme Court established the exclusionary rule in 1914 in Weeks v. United States to safeguard rights guaranteed by the Fourth Amendment. The rule enunciated in Weeks prohibited the use of evidence obtained by federal agents in violation of the Fourth Amendment’s proscription against illegal searches and seizures. In Mapp v. Ohio, the high court extended the rule to state court proceedings by holding that failure to exclude illegally obtained evidence in state courts violated the Fourteenth Amendment.

The justification underlying the adoption of the exclusionary rule was two-fold:

1) the imperative for judicial integrity, i.e., courts cannot condone lawless invasions of constitutional rights; and

2) the deterrence of unlawful police conduct.

The controversial rule has been continually under scrutiny since its inception, and subsequent to Mapp the Court began to retreat by limiting its application and scope. In United States V. Calandra, the Court permitted the use of illegally obtained evidence in grand jury proceedings. Although United States v. Simmons held that testimony elicited during a hearing on a motion to suppress is not admissible against a defendant at trial, in United States v. Havens the Supreme Court approved the use of illegally obtained evidence to impeach the credibility of a witness. The Supreme Court further limited the application of the exclusionary rule in United States v. Janis by allowing the use of illegally seized evidence in a federal civil proceeding.

In United States v. Peltier, the Supreme Court fashioned the final and most extensive limitation on the exclusionary rule. Denominated as the “good faith exception,” the Court allowed admission of evidence obtained from an officer’s search and seizure, where the officer conducted the search in good faith reliance that the evidence seized was admissible at trial. Peltier involved a warrantless search of an automobile conducted pursuant to a validly enacted statute permitting such searches. Prior to the decision in Peltier, but subsequent to the search, that statute was invalidated. The Supreme Court allowed the use of the evidence, reasoning that the “imperative of judicial integrity” was not offended by the introduction of the evidence. Thus, a technical Fourth Amendment violation was cured by the “good faith exception”.

In his dissent in Peltier, Justice Brennan opined that the majority opinion would result in the “slow strangulation” of the exclusionary rule: “I have no confidence that the new formulation is to be confined to putative retroactivity cases. Rather, l suspect that when a suitable opportunity arises, today’s revision of the exclusionary rule will be pronounced applicable to all search and seizure cases.”

The following year, in Stone v. Powell, the Court refused to apply the exclusionary rule in federal habeas corpus proceedings where a state prisoner had been afforded full consideration of the rule by state courts at trial and on direct review. Significantly, in his dissent in that case, Justice White proposed two criteria for the admissibility of illegally seized evidence: a subjective test that the officer acted with the good faith belief that his conduct was legal; and the objective test that the officer had a reasonable basis for such a belief.

The Fifth Circuit Court of Appeals en banc decided the first case expressly applying the good faith exception to the exclusionary ruIe—United States v. Williams. The Court held that evidence should not be suppressed under the exclusionary rule when discovered by officers who have a reasonable, good faith, though mistaken belief that their actions are authorized. The “good faith exception to the exclusionary rule,” as described by Justice White in dicta in Stone v. Powell, and Justice Brennan’s admonition in Peltier may soon become binding precedent in a case presently before the high court, Illinois v. Gates. This case not only presents an issue that is critical to the future practice of criminal law, but also involves a fascinating study of the mechanism by which the Supreme Court found its “suitable opportunity” to reach the issue.

In Gates, certiorari was originally granted to determine whether or not the Supreme Court of Illinois correctly decided the only federal question presented to it: Does the Fourth Amendment prohibit a magistrate from issuing a search warrant based on the type of affidavit filed by an officer in that case? Subsequently, the state of Illinois filed a motion seeking leave to enlarge the question presented for review: Assuming arguendo that the search warrant was defective, should the evidence obtained nevertheless be admitted at trial because “the police acted in a reasonable, good faith belief in the validity of the warrant?” The Court unanimously denied the motion. In October 1982, the parties presented oral argument on the sole issue originally before the Court. In November the case was returned to the calendar for reargument, and the parties were directed to address the question whether the exclusionary rule should be modified so as “not to require the exclusion of evidence obtained in the reasonable belief that the search and seizure at issue was consistent with the Fourth Amendment.”

Justice Stevens filed at strong dissent, joined by Justices Brennan and Marshall. The dissenters opined that the per curiam order was inconsistent with the Court’s settled practice of not permitting a party to advance a ground for reversal that was not presented below. “[T]he action [the Court] takes today sheds a distressing light on the Court’s conception of the scope of its powers.”

The Court rendered its startling decision on June 8, 1983. Justice Rehnquist, writing for majority, deferred to the dissenters to the per curiam order and “with apologies to all” decided that the issue of a reasonable belief exception to the exclusionary rule, which the High Court itself had “framed for the parties,” was not presented to the Illinois courts below and therefore could not now be addressed.

The remainder of the opinion, however, was certainly not as lackluster as its inauspicious beginning. Although the Court refused to address the anticipated “good faith” exception issues, it nevertheless dramatically modified the practice of criminal law by rejecting the two-pronged Aguilar—Spinelli test to determine whether an affidavit in support of a warrant contains sufficient information to support a determination of probable cause.

The two-pronged test, the majority stated, “directs analysis into two largely independent channels—the informant’s ‘veracity’ or ‘reliability’ and his ‘basis of knowledge.’ There are persuasive arguments against according these two elements independent status. Instead, they are better understood as relevant considerations in the totality of circumstances analysis that traditionally has guided probable cause determinations. The Court abandoned the “two-pronged test” established in Aquilar and Spinelli. “In its place we affirm the totality of the circumstances analysis that traditionally has informed probable cause determinations.” Thus, although modifying the standard that a magistrate must apply in deciding whether probable cause to issue a warrant exists, the Court has yet to address the critical issue of the “good faith” exception to the exclusionary rule.

Critics of the exclusionary rule will argue that it impedes the search for truth in that it bars the admissibility of reliable and probative evidence. More significantly, it allows the criminal to go free because of a blunder by the authorities. However, applying the good faith exception raises numerous practical problems. A police officer need only claim that he or she acted in good faith, and the court need only find that belief to be reasonable. Neither “good faith” nor “reasonable belief” are easily capable of objective definition. Thus, we are left with an undefined standard that may require years of litigation before proper guidelines are established. If the Supreme Court were to adopt a per se good faith exception to the exclusionary rule, we may well see the exception swallow the rule, and with that the destruction of our only viable Fourth Amendment safeguard.

Who Will Have Standing to Complain?

Until recently, under Jones v. United States, any individual charged with a crime of possession automatically had standing to object to a Fourth Amendment violation. This was logical because it appeared contradictory for the government to be allowed to argue on the one hand that the defendant possessed the substance and, as to the accused’s standing, claim he or she had no privacy interest in it.

In Rakas v. Illinois, the U.S. Supreme Court found that the Jones standard created too broad a gauge for measurement of Fourth Amendment rights and that the courts must engage in a conscientious effort to apply the Fourth Amendment by asking not merely whether the defendant had a possessory interest in the items seized, but whether the defendant had an expectation of privacy in the area searched.

In United States v. Salvucci, the court overruled the automatic standing rule in Jones, again holding that defendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated.

Finally, in Rawlings v. Kentucky, the court stated that ownership of goods seized is only one fact to consider, but that alone does not confer standing. The test is whether the person had a legitimate expectation of privacy.

Increasingly stringent standing requirements have further eroded the exclusionary rule. Proving standing is the first thing the defense lawyer must do; standing must be established before the rule can be invoked. Although the Supreme Court established the standard in Rakas, Salvucci, and Rawlings, state courts are not bound by the standing limitation imposed on the federal courts. This will be a continuing problem in the future and will further destroy Fourth Amendment protections under the exclusionary rule.

How does the practitioner establish a client’s standing to complain of a Fourth Amendment violation? To demonstrate the requisite “Iegitimate expectation of privacy,” often the defendant must testify at a hearing on the defendant’s motion to suppress. This often poses a dilemma for defense counsel. Most defendants will resist testifying, which means admitting their interest in the contraband, but failure to do so may result in an inability to claim a Fourth Amendment violation. Moreover, although the defendant’s testimony at a suppression hearing cannot be used during the government’s case-in-chief, it may be used for impeachment purposes. The testimony might be allowed in collateral state criminal proceedings; the law on this point is not yet well defined. Thus, the standing dilemma will continue to plague the practitioner as it further limits the exclusionary rule.

Electronic Surveillance

The Supreme Court is presently considering a critical question in the area of electronic surveillance: Does the warrantless monitoring of an electronic tracking device (beeper) to aid in locating the manufacture of illegal drugs violate the Fourth Amendment? The Circuit Courts of Appeal and the state appellate courts have been hopelessly divided on this issue, and this term of the high court should clarify the question of whether Fourth Amendment rights attach in the use of such surveillance equipment.

On March 2, 1983, the U.S. Supreme Court held in United States v. Knotts that monitoring of the signal emanating from an electronic tracking device did not invade any legitimate expectation of privacy and thus was neither a “search” nor a “seizure” within the contemplation of the Fourth Amendment. In Knotts, law enforcement officers who had reason to believe that the defendant was purchasing chloroform to be used in the manufacture of illicit drugs arranged with the chloroform seller to place a “beeper” inside the container sold to the defendant. Officers then followed the car in which the chloroform was placed and ultimately traced the chloroform by beeper monitoring alone, to a secluded cabin. They then obtained a search warrant and discovered a clandestine laboratory where the defendants manufactured amphetamines. Unlike many prior “beeper” cases decided by the various Circuit Courts of Appeal, the defendant in Knotts challenged only the monitoring of the beeper, not whether the original installation violated Fourth Amendment protections. Thus, while the Court held that monitoring the beeper signals did not invade any legitimate expectation of privacy, they did not reach the critical issue of the propriety of the installation. Thus, the Circuit Courts of Appeal’s decisions remain in conflict in this regard.

Computer Crimes

With the proliferation of computers in our society, and the public’s continued education in that field, one can expect an increase in computer crimes. The computer has been used to aid in the perpetration of complicated financial swindles, embezzlement, and even theft of computer data, but the age of computers has only just begun. In the future, the practitioner may well confront computer-related cases; therefore, a basic understanding of this specialized field will be necessary.

Conclusion

It is obvious that the criminal trial lawyer will face many changes in the months and years ahead. Reshaping the criminal law may prove dramatic and far-reaching. The practitioner must be prepared to face this new era with all of his or her energy and ingenuity.

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A Diligent Search for the Truth

July 7th, 2009 by admin No comments »

Cross-Examination of Defense Medical Experts in Traumatic Brain Injury Cases:

A Diligent Search for the Truth

Introduction:

The cross-examination of a defense expert in a traumatic brain injury case is not as daunting

a task as might be first assumed. The first step in contemplating and organizing the cross-

examination is to ask, “What am I as the cross-examiner afraid of?” The fear that the expert will

destroy your client’s meritorious case is the biggest impediment to an effective cross-examination.

Fear can cause a lawyer to lose judgment and attack the witness in an argumentative, hostile way,

provoking the witness to mirror the examiner’s aggression with counter-aggression, and to fight the

perceived personal assault rather than making, legitimate concessions. Juries tend to identity with

the witness, not the lawyer, and we must treat the witness with respect or risk a backlash from the

jury. Jurors are not usually thinking, “Oh what a magnificent cross, he destroyed the witness.” but

more likely, “‘Thank God I’m not in the witness chair, the SOB would do it to me what with all his

verbal tricks. He’d make me look like a fool.” The trial lawyer should consider the dynamic created

in the confrontation between the witness and the attorney. In a contest between a lawyer, who in his

or her fear and outrage, attacks and brutalizes a witness who is a threat to the case and the client, the

witness can seem reasonable to the jury. “To the jury, the witness seems calm, informed, well-

schooled in his area expertise and a man or woman with years of experience. Why would anyone

attack him so? The lawyer can unwittingly transform himself/herself into the villain in the

courtroom. Suddenly the jury may want the witness to win. The problem is that no one has advised

the young lawyer that you cannot attempt to “kill” any witness until the jury wants him killed-until

he has been carefully, quietly exposed as a fake.” The reasonable lawyer must slowly, deliberately

and with respect and compassion put himself in the shoes of the expert and try to understand what

motivates him or her. With patience the lawyer can put the witness in the “black hat” by causing the

witness to display anger, frustration, arrogance, hostility, bias, greed, exaggeration or evasiveness.

At a minimum the witness must agree to some of the basic scientific principles of brain function and

cause of brain damage. The lawyer must, as the director of this play (this trial), control not only the

substance of the cross, but the interpersonal dynamic including the body language between the

lawyer, the witness, and the client. The jury views all verbal and nonverbal communication as being

as important as words spoken. The lawyer should use real words and language and not become so

bound up in having mastered the jargon of brain injury that he or she comes across as stilted or fake.

Realness, caring, and compassion for the client must come across to the jury in the direct and cross

of this witness, as well as other witnesses in the case. Above all, be cognizant of what is

communicated in the case through the play, the drama that is being presented in the trial. Do not

only pay attention to the mere words, which are but part of the communication. Remember to pay

attention to the answers, both verbal and non-verbal, that the witness gives so that appropriate

follow-up questions will be asked. The lawyer must he prepared enough so that he or she is not so

focused on the page of` written questions that the answers of the witness are only partly heard and

understood, The second goal of the cross-examination is to set goals for the cross. The lawyer

should develop an achievable number of finite goals for the cross-examination, such as showing bias

because of financial incentives, prior inconsistent writings or testimony, lack of preparation, etc.

Spence, Gerry: With Justice for None: Destroying an American Myth, pg. 254, N.Y.,1989.

I . Focused finite goals, rather than arbitrary meandering approaches, in preparing for and cross-

examining the expert are extremely important, especially when the outcome of the cross-examination

can have such a profound effect on the overall verdict.

Basics of Cross-Examination of Defense Expert:

I. Master all of your client‘s medical records, so that any errors of the expert in reviewing them

can be pointed out in deposition or trial.

2. Obtain expert’s written report before the deposition.

3. Obtain any testing data from the expert. (Halstead Reitan raw test data, etc.)

4. Review the defense expert’s report in conjunction with the report of your own plaintiff’s

expert. (Compare similarities and differences.)

5. If possible, find prior testimonies, depositions, articles, and seminar presentations before the

deposition, i.e., www.trialsmith.com. In the expert’s deposition, ask questions sufficient to

find these source materials for cross-examination at trial.

6. Prior to the deposition, review the defense expert’s entire file, including correspondence and

billing. Ask the expert if any materials have been removed from the file.

7. Master the science of traumatic brain injury especially areas of brain function,

neuropsychological testing and cause of TBI.

Preliminary Questions to Explore:

l. How many patients with traumatic brain injury has the expert treated or evaluated?

2. What involvement has the expert had in brain injury rehabilitation?

3. What education, training, and research in traumatic brain injury has the expert completed?

Is he or she board certified neuropsychologist?

4. Has the expert written any articles regarding traumatic brain injury?

5. What familiarity does the expert have with medical literature?

a. What articles, authors, or authoritatives are on the expert‘s bookshelves?

b. What has the expert reviewed?

c. Are there similar cases in which the expert has given testimony/depositions?

6. Are there transcripts from other lawyers to obtain?

7. What are all the injury/impairments that this expert attributes to the traumatic event?

8. What is the expert‘s hourly rate for preparation, depositions, trials?

9. What percentage of the expert’s income is derived from testimony as an IME or other expert?

10. What percentage of the expert’s time is spent actually evaluating and treating brain injured

clients?

11. Has the expert actually seen and examined the patient?

I2. What percentage of testimony is a treating neuropsychologist vs. what percentage is a defense

expert?

Client Credibility:

1. Is the client faking, malingering, exaggerating symptoms? (MMPI malingering scale)

2. Does the client express a desire to get better?

3. Is the client still working despite deficits?

4. What coping strategies is the client using to continue living?

expert your understanding and knowledge base of TBI will tend to keep him or her honest in the

cross-examination.

A very basic summary of brain anatomy and TBI mechanics is as follows: Brain injuries can

result from a traumatic event. These include skull fractures, contusions of the gray matter,

lacerations of brain tissue, shearing injuries, diffuse axonal injuries, intra-cranial/intra-cerebral

hemorrhages.

Delayed or secondary brain injuries can arise from post-injury elevated intra-cranial pressure,

epidural subdural and arachnoid hemorrhages, hypoxic injuries, ischemic injuries, excito-toxicity

injuries, status epilepticus,

Skull fractures may be linear, with or without displacement of bone fragments, or depressed

when fragments of bone are forced towards the brain. Diastasis fractures occur when a blow to the

head causes plates of bone to separate from each other. Damage to the brain may occur without

fracture to the skull, causing permanent damage. Even fatal injuries occur without skull fracture (i.e.

shaken baby syndrome).

The brain itself may be injured in an Acceleration/Deceleration injury even in the absence

of a blow to the head, where the brain tissue strikes the interior of the skull, which is not smooth, but

has many sharp boney protrusions or where the tissue is twisted, torqued, or sheared. The skull

decelerates faster than the brain, which is floating within cerebral-spinal fluid. Tears of the brain

may occur when the brain strikes boney protrusions within the skull, or when the mechanism of the

injury causes twisting, shearing, or deformity of the brain tissue, which has the consistency of

oatmeal or jello. Microscopic damage to brain tissues (neurons, axons, dendrites) may or may not

appear on CAT scans or MRIs. Moreover, tearing or shearing injuries may take place at the time of

the initial injury or the injury may take as long as 24-48 hours for the process to be completed

because of swelling secondarily causing lack of profusion and excito-toxicity.

Intra-cranial hemorrhages are caused by the result of direct tearing of brain tissue, or tearing

of thin-walled bridging veins within the brain. Damages result from direct tearing of brain tissue,

or compression by the expanding mass of blood and chemical damage to surrounding brain tissue

(excito-toxicity). Increased pressure within the brain is caused when bleeding occurs within the

brain. The brain is surrounded by a rigid structure of the skull, and the swelling compresses the brain

tissue. Blood, glucose, and oxygen supplied to brain tissues are diminished as intra-cranial pressure,

relative to mean arterial blood pressure, increases. As intra-cranial pressure rises, cerebral blood

flow decreases. MRI or CT may demonstrate shrinking ventricles or midline shift showing increased

intra-cranial pressure.

Hypoxia or anoxia injuries are caused when oxygen is cut off from brain cells, which need

oxygen and glucose for survival. Below certain critical levels, permanent brain damage occurs.

Such injuries can occur from lack of oxygen or blood flow.

Intra-cranial hemorrhages can occur in different fibrous membranes, creating several

compartments. The dura mater is the thick, outer-most membrane surrounding the brain. The pia-

arachnoid is a thin, inner membrane. Hemorrhages (epidural, subdural, or subarachnoid) can occur

within the epidural space (the space between the inner surface of the skull and the dura mater, in the

subdural space (the space between the dura mater and the pia-arachnoid), or the sub-arachnoid

space (the space between the pia·arachnoid and the surface of the brain). When brain cells are

injured, damaged neurons release their neuro-transmitters, the chemical messengers by which brain

cells communicate and transfer information. Excessive release of excitatory neuro-transmitters,

including glutamatensaspartate, over-stimulate neighboring neurons, causing a chain of events

culminating in death of brain cells over 24-72 hours.

Sometimes brain injuries cause seizures such as status epilepticus, a condition in which an

individual experiences a single seizure lasting more than 30 minutes, or a series of seizures lasting

at least 30 minutes, where the individual does not regain consciousness between seizures. The

brain’s need for blood flow, oxygen, and glucose can increase five fold during such seizures. An

enormous increase in metabolic needs, which may not be met, may result in an additional brain

injury.

Once you have been retained to represent a client in a brain injury case, and the defense has

named its neurosurgery/brain injury expert or neuropsychologist, you should follow these basic

guidelines in preparing for the cross-examination of this most vital and pivotal expert, who can make

or break a brain injury case.

Mechanics of the Closed Head Injury:

I. Obtain concessions regarding anatomy and known mechanics of injury.

2. ls a blow to the head necessary? (i.e. Shaken Baby Syndrome, where the head strikes

nothing; or Acceleration/Deceleration injury, where the body is arrested by a seatbelt or

airbag before the head strikes an object.)

3. Does a concussion constitute an injury to the brain or brain damage?

4. An Acceleration/ Deceleration injury slams the brain (which floats in spinal fluid) into the

interior of the skull, which has sharp, bony protrusions. lt is not smooth like the inside of

a basketball. The brain may then bounce back into other opposite side of the skull, resulting

in at contrecoup injury. Such a mechanism can also tear and shear brain tissue.

5. Can the brain he concussed without loss of consciousness?

a. Phinneas Gage: a railroad worker tamping dynamite had a long steel spike blasted

through the bottom of his jaw through the top of his skull, without losing

consciousness.

b. Are there any signs of altered consciousness/amnesia, as evidence of concussion?

c. Patient’s memory is notoriously inaccurate as to whether patient lost consciousness.

If he/she is unconscious, how much would he/she know? Sometimes a person whom

observers saw unconscious only reports being “dazed.”

6. Is it common for traumatic brain injury patients to have normal neurological exam?

7. Is it common for traumatic brain injury patients to be oriented three times: to know who they

are, where they are, what day it is, and who is the President?

8. X-rays: the plain film x-rays will not diagnose a brain injury. They can only show possible

skull fractures, bone injuries or swelling soft tissue.

9. CT scans and MRIs frequently are normal because most traumatic brain injuries cause

damage to microscopic tissues such as neurons, axons, or dendrites. In these diffuse

microscopic areas of the brain, injuries will not show up on imaging studies unless the

injuries are concentrated in one area.

10. All EEG will only demonstrate a seizure if one is actively occurring at the time the test is

performed.

11. Sleep studies will sometimes demonstrate seizures during a night of sleep.

12. Have you seen normal studies of this type in your own patients, who had traumatic brain

injuries?

13. Does the traumatic brain injury patient having normal findings in these areas rule out

traumatic brain injury?

Types of Typical Symptoms of Post-concussion Syndrome/Mild TBI:

l. Physical

2. Cognitive

3. Behavioral

4. Emotional

What are Client’s Symptom By History?

1. Facts of the traumatic event.

2. Pre-trauma symptoms.

3. Post-trauma symptoms.

4.. Are these symptoms consistent with post-concussion syndrome’?

5. What is your diagnosis?

Attacking Opposing Experts:

When cross-examining experts in TBI injury cases, you must give the jury reasons to doubt

their opinions.

I. You should choose your territory carefully. It is important not to rehash and argue with the

defense doctor about each of his opinions. This strategy will merely reemphasize the

doctor’s points, and position yourself on the doctor‘s own turf. You must choose your own

battleground.

2. Use your expert as a resource for ideas to attack the opposing expert‘s opinions.

2. Review the doctor’s report carefully. Compare it to the medical records concerning the

patient to find inconsistencies.

3. Obtain admissions and concessions of important evidence. Find the weak spots on which

to focus your attention on trial, regardless of what the doctor said on his/her direct

examination.

4. Focus on the financial incentive. The doctor has to testify in a certain, and paint him/her

as a hired gun. Fees of $300-$400 per hour are common and could be more at trial.

Sometimes experts require first class airfare, luxury accommodations, and limousines.

Middle class jurors are frequently “shocked” at these fees.

5. Obtain concessions that the doctor is not a treating doctor, but merely an expert witness, who

is critiquing and criticizing based on the plaintiffs reports, not “hands on” examination of

the patient.

6. Have the doctor admit the quality and credibility of his opinion depends on complete

information and then demonstrate that he does not have it. Expert opinions regarding

traumatic brain injury require knowledge, training, and experience, as well as a fair and

accurate analysis.

7. Catching the defense doctor in a few “black and white” errors can he devastating to his

credibility. For example, in the deposition (attached to this paper), an excellent

neuropsychologist affiliated with the Shepherd Center hired for a neuropsychological IME,

criticized Dr. Larry Hartlage, neuropsychologist from Augusta, Georgia, as to Hartlage’s

methodology in investigation of background information, The doctor felt that it was

improper for Dr. Hartlage to ask the plaintiff, Mr. Tillman, if he had lost consciousness,

feeling that his opinion would be inaccurate. The IME neuropsychologist went on the state

that he could not tell from the medical records whether the plaintiff was unconscious.

During cross-examination, I was able to show him four places in the medical records where

the police officer, the EMT, the emergency room physician, and a consulting neurologist all

indicated that Mr. Tillman had been unconscious at the scene. I was able to further discredit

the IME doctor‘s diagnosis, as he described a fracture of the maxillary sinus, contradicting

all of the medical records describing the injury as a zygoma fracture. The IME

neuropsychologist‘s report stated there was no indication in the medical records that Mr.

Tillman was confused, however, we proved in cross-examination that TilIman was described

as confused in the EMT report and the emergency room report by the emergency room doctor

and nurses. On cross-examination, the IME doctor was forced to read the record stating that

the patient was awake, alert, confused, and that he was not oriented times three. Also, the

IME doctor, l feel, exaggerated the patient’s history, accusing him of being a substance

abuser because someone in his car had a “joint” on them, and calling him an arsonist because

he had been arrested when some boys were burning a forklift pallet inside of an abandoned

building to keep warm. The cause of these discrepancies was that the defense lawyer hadn’t

provided the defense expert with all of the pertinent medical records.

8. Always be on the look out for a lucky break. After concluding the deposition of the defense

neuropsychologist, I noticed an article by Dr. Hartlage on the expert’s desk. It turned out

that the defense neuropsychologist was citing an article on malingering written by Hartlage

in a paper the defense doctor was writing. Before the court reporter left, I had her set up

again and elicited questions from the IME neuropsychologist indicating he was using a

published Hartlage article concerning malingering as a learned treatise source in an article

he was writing concerning traumatic brain injury, even though he attacked Hartlage‘s

opinions concerning my client.

9. It is important to establish that the doctor has incomplete information in some important

aspects of his/her diagnosis. If possible, establish the defense doctor‘s deficiencies or

limitations in knowledge, training, or clinical experience in traumatic brain injury. Usually,

the plaintiff’s lawyer can establish a bias on the part of the defense expert. Prove that the

defense expert testifies frequently for the defense; that he has an ongoing relationship with

insurance companies and their counsel. Aim to demonstrate that he has an ongoing

relationship with worker’s compensation lawyers, and insurers, that his hourly charges are

exorbitant, and that the total amount paid for his work on the case is outrageous. Their

amounts are usually shocking to most jurors.

10. Attempt to show faulty, unfair, judgmental analysis. Establish that the doctor did not

correctly analyze data. If you can find a few areas where deficiencies are “black and white”

and obvious, the credibility of the expert will be neutralized.

11. Obtain an admission from the doctor that the plaintiff is honest. This may include an

admission from the neuropsychologist that the testing was valid (MMPI).

12. Establish that the plaintiff complained of certain symptoms, which are consistent with brain

injuries such as impaired memory, fatigue, confusion, distractibility, sleep disruption, etc.

13. Show that the expert focuses on the negative and does not concede obvious positive factors.

14. Obtain concessions from the expert that a mild traumatic brain injury does not necessarily

mean a mild deficit for people who are involved in mentally demanding careers.

15. Obtain admission from the defense expert that if there is injury to the brain, any damage

is significant. Since the brain regulates, coordinates, and organizes the systems of the body

and provides us with the ability to think and know who and what we are, any injury,

including mild injury, can be devastating.

16. Juries usually decide cases for reasons other than expert witness testimony; therefore, if you

can score clear, obvious points against an expert, the jury will probably discount his or her

testimony and rely on your expert’s testimony. Victory is achievable.

17. Obtain admissions about the bio-mechanics of how brain injuries are caused and how areas

to different areas of the brain are manifested in clusters of recognized behavioral and

cognitive symptoms.

18. Remember competing expert witnesses hired by opposing litigants usually cancel each other

out. Frequently these cases are won based upon what lay witnesses have to say about the TBI

victim, not what the experts say.

Conclusion:

Slay the giant, gather the plunder and when all is over, remain humble in your heart, and

move on to the work of helping your next client. If you are fortunate and win, be gracious to the

court, the jury and your opponent above all. Remember, “sometimes you’re the windshield,

sometimes you‘re the bug.“(Dire Straits: song emitted, “The Bug”) Effective cross-examination in the

traumatic brain injury case, like any other cross-examination, can only be accomplished when the attorney knows which of the cross-examination goals can be successfully achieved with a particular witness. The goals should be developed and ascertained in advance. The purpose of the cross-examination should be to obtain admissions to achieve specific, pre-determined goals. All attorneys can accomplish a successful cross-examination of witnesses, if he/she first determines what goals can be achieved with the particular witnesses. Cases are not won or lost based on cross-examination. Usually, cases are merely retained on cross-examination.

There are only four main goals in any cross-examination. These four goals are: (1) obtain

admissions from the adverse witness; (2) create an impression of agreement: (3) indicate bias or

prejudice (i.e. the expert witness is usually financially motivated); and, (4) discredit the adverse

witness. Usually the lawyer can only obtain one or two of the goals and not all four. Frequently this

is enough.

Approach cross-examination like a baseball game, understanding, as in trial, that the games

are not usually won ten to zero, but rather five to three.

At the deposition, one should obtain admissions from the witness in such a fashion that the

witness cannot reverse his or her position at trial. Not only should admissions be obtained, but also

those admissions should be locked in for effective use during the trial. The witness must he pinned

and boxed in such a fashion that he cannot escape the admission at trial. If the defense doctor has

made any positive findings, these are key facts that he has admitted and these need to be emphasized

in cross-examination. PowerPoint or enlargements help highlight these admissions. Cross-

examination can demonstrate the medical or psychological validity of the plaintiff’s theory.

In my opinion, a “soft” cross-examination is usually best. A hard-edged, threatening cross-

examination, while it may seem rewarding to the lawyer performing it, may cause the jury to

sympathize with the witness. Often, jurors feel that if they were on the stand, the lawyer would

butcher them as well. To the jury, the cross-examination becomes an exercise in “lawyer tricks,”

rather than an effective and respectful cross, neutralizing of the witness. Remember, jurors tend to

identify with the witness and not the lawyer. Jurors look at the trial lawyers’ skill of cross-

examination with great awe and fear, as they imagine themselves being cross-examined. Remember,

cross-examination is the art of creating an overall impression about either the lack of trustworthiness

of a witness’ testimony, or about an apparent agreement between you and the witness.

Always end the cross-examination on a high note. Always be able to turn your back on the

witness and walk away with your head held high. This compartment will nonverbally communicate

to the jury that you have been successful in your cross-examination, you have shown that the witness

agrees with you, or that the witness’ testimony is untrustworthy.

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Legal Representation of the Professional: Challenges and Responsibilities

March 2nd, 2009 by admin No comments »

Legal Representation of the Professional:
Challenges and Responsibilities

By E. Marcus Davis

Representation of the professional or “white collar” business person in a criminal case can be one of the most rewarding advocacy experiences in the career of a trial lawyer. The responsibilities are immense, because the client faces not only the loss of freedom, but also the loss of the ability to earn a livelihood. Judges of the appellate bench have articulated these immense responsibilities:

“While every criminal conviction is important to the defendant there is a special poignancy and a corresponding responsibility on reviewing judges when, as here, the defendants have been men of blameless lives and respected members of a learned profession.”

Thus, the defense lawyer should only undertake representation of such a client after careful consideration of the expertise, resources, and commitment required.

Fee Setting

There are various ethical considerations that govern fee setting. Many professionals and business people prefer paying an hourly fee. This is often not the case in other types of criminal cases. The criminal lawyer should consider such an arrangement, but should ensure that provisions are made for adequate security. Once a lawyer becomes counsel of record, it may become impossible to withdraw from the case. If you prefer to set a lump sum fee, you should consider carefully the work required and not impulsively set a fee that initially might seem adequate, but which might prove insufficient.

One key factor to be considered is the responsibility involved. The professional or business client has a tremendous investment in his or her career, and the career often has tremendous future monetary value. You should set a fee high enough to enable you to do everything in your power to preserve your client’s career and freedom.

Dealing With Additional Stress

The trial lawyer who undertakes representation of a fellow professional or a “white collar” defendant should be aware of the enhanced stress inherent in the representation. Your client may be a professional peer with whom a lawyer could readily empathize. You may come to identify with the client to such an extent that you acutely feel the pain of losing such a case. On the other hand, the feelings of professional accomplishment and fulfillment in victory are magnified as in no other case.

By recognizing the potential for stress in such representation, you can consciously decide how to deal with it. Some lawyers choose to get close to the client so that they are motivated to peak performance. The risk is that a loss may be emotionally devastating, and more importantly, you may become too involved to maintain the detachment and calm that is indispensable to the proper handling of the case. Other lawyers purposefully insulate themselves from the client so that stress does not affect their performance or their emotional well-being.

Controlling the Client

The professional or business person is often a leader, may be articulate, and usually has an unrealistic view of the fairness of the prosecutorial system. These factors often result in counterproductive conduct during the preparation and trial of a case. As the defense lawyer, you must establish control of the client from the outset. If you doubt your own judgment and allow your will to be overborne by that of your client, you are not competent to handle the case.

Your client’s input into the handling of the case should not be foreclosed, however. Often able to provide valuable insights into a case involving his or her profession, the defendant’s input and participation should be encouraged. Keep your client abreast with correspondence and pleadings. If you consistently inform the defendant of activities in the case, he or she will realize that you are maintaining diligent representation and will retain confidence in you.

Concurrent Proceedings

The opportunity for discovery in criminal proceedings is severely limited when compared to the liberal discovery rules of federal civil procedure, state court practice, administrative and licensing revocation procedures.

Rule 26 of the Federal Rules of Civil Procedure provides for the discovery of “any matter not privileged which is relevant to the subject matter involved in the pending action.” The information sought does not even have to be admissible at trial, but need only be reasonably calculated to lead to the discovery of admissible evidence. In criminal cases the prosecutor’s discovery efforts are limited by the defendant’s Fourth and Fifth Amendment rights. Rule 16 of the Federal Rules of Criminal Procedure sets out the narrow discovery available to criminal defendants.

The government’s reciprocal discovery of a defendant’s case is governed by Rule l6 (b). Subsections (b) (1) (a) (A) and (B) preclude government discovery except after the defendant has requested discovery of the government’s materials, and the government has complied. The subsections allow the government to discover “books, papers, documents, photographs, tangible objects,” or “reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case” that the defense has in its control and intends to introduce at trial. Subsection (b) (2) provides the same kind of work product immunity to the defendant that is provided the government in subsection (a) (2). Rule l6 (e) concludes the discovery rules by adopting Rule 12.1 to regulate discovery of alibi witnesses.

Thus, the government is quite limited in its discovery efforts by the Federal Rules of Criminal Procedure. Concurrent tax, civil, administrative, or licensing procedures, however, can strip the defendant of this shield in various ways.

The danger of prosecution following an Internal Revenue Service (IRS) audit is especially acute. Permission to the IRS to examine one’s private books and papers upon a routine or regular audit has been held a waiver of constitutional rights in the absence of misrepresentation even when the Internal Revenue agent later discovers fraud and refers the matter to criminal investigation.

In most states, professions such as accountants, physicians, nurses, lawyers, dentists, architects, psychologists, marriage counselors, funeral directors, and the like are regulated by legislatively created administrative boards and agencies. The boards and agencies can terminate the professional’s livelihood by suspending or revoking his or her license. Because of the wide-ranging discovery available to the boards, your client may be an easy target for subsequent criminal prosecution.

There are other instances in which a client will be subjected to simultaneous civil action and criminal prosecution. He or she may, for example, be a defendant in concurrent civil and criminal antitrust actions; a Federal Trade Commission civil action and a criminal mail fraud prosecution; or a Securities and Exchange Commission investigation, a civil suit for fraud, and later, a prosecution for violation of the Securities Exchange Act. These multi-pronged attacks on your client are fraught with danger.

Ironically, these potentially harmful concurrent actions often provide defense counsel with an invaluable opportunity to obtain discovery. In some states, licensing actions provide defense counsel with access to the investigative file, which will not be available to defense counsel in a subsequent criminal case. The government’s witnesses may be deposed in the context of a concurrent civil action or interrogatories may be propounded to them, thus locking them into a sworn statement.

As defense attorney you must conduct a difficult balancing act. Attempt to gain discovery through concurrent proceedings, but prevent the government from circumventing your client’s privilege against self-incrimination.

lf you feel that the risk of concurrent proceedings outweighs the advantages, do not hesitate to seek a stay, a protective order pursuant to Federal Rules of Civil Procedure Rule 30(b), or whatever other remedy you deem appropriate. Your client’s rights, which are in jeopardy, are of constitutional magnitude, and the courts are likely to grant some relief.

Stays and protective orders are not automatically available, however, and some courts will refuse to grant any relief. Others will grant only limited relief. Some federal courts have concluded that the threat to the defendant’s Fifth Amendment right requires a complete stay of the civil proceedings or civil discovery during the pendency of the criminal case.

Alternatively, it could be argued in the civil action that a Rule 26(a) protective order is appropriate. Still other courts have fashioned an intermediate approach to handling this problem.

Insulating Oneself From Ongoing Potentially Criminal Activities

In some professional or white collar cases, the client continues to act in a manner the government deems illegal. In such cases it is necessary to separate civil and criminal representation, so that the criminal defense lawyer is not subjected to a potential conspiracy indictment. If you are the defense lawyer, your judgment will be better if you concern yourself only with criminal exposure and not with maintaining lucrative, hourly representation with an ongoing “business client.” For example, if you are representing a client in a mail fraud prosecution you should not simultaneously be involved in advising the same client as to what is or is not deceptive advertising for a product.

You should also be aware of the risks of being subjected to a RICO (Racketeer Influenced and Corrupt Organizations) prosecution as the result of even a tenuous involvement with the client.

Pretrial Motions

There are certain motions which frequently are appropriate in defending, the professional. In many cases the professional or white collar defendant has such stature in the community that the case has attracted notoriety. Rule 2l of the Federal Rules of Criminal Procedure provides that the court shall, upon motion of the defendant, transfer the case, where there exists so great a prejudice that the defendant cannot obtain a fair and impartial trial. If this is true in your case, you should file such a motion.

If the defendant has no criminal record, the government may use a lengthy indictment to take the place of a criminal record. The jury is left with the impression that a defendant charged with so many counts must be a bad person and must be guilty of some of them. The defense lawyer should, therefore, bring a motion to strike the multiplicitous counts and to strike the surplusage pursuant to Rule 7 of the Federal Rules of Criminal Procedure.

Many of these cases involve volumes of documents and the testimony of experts. Prior to trial you, as defense lawyer, should bring a motion for early disclosure of Jencks Act material and documentary evidence that the government intends to use. This will assist the defense and will save the court time, since it will not be necessary to call a Jencks recess after each government witness testifies. An attorney cannot effectively prepare the cross-examination of an expert during a 30-minute trial recess.

The Jencks Act, of course, requires that a witness’ statement be produced to defense counsel only after the witness has testified. However, at least one court, invoking the US Constitution, Rules 403 and 102 of the Federal Rules of Evidence, and its own inherent powers, has ordered the early disclosure of Jencks material so as to alleviate a severe backlog of cases in its district.

Utilizing the Expert Witness

Many “white collar” or “professional defendant” cases involve complex fact situations. The defense lawyer should recognize the need for utilization of experts.

A true advocate masters the subject matter of any case, no matter how complex, and presents it in such a manner that it can be readily understood by the jury. The prosecutor will have the expert resources necessary to present the complex case to the jury. If you fail to utilize experts similarly, the defense will be at a disadvantage. You cannot wait for a defense to emerge at trial. Use your experts to develop a coherent, credible defense to the prosecution prior to trial. Educate your client as to the need to retain and pay experts.

It also is important to use experts to defuse the impact of the government’s experts. Defense experts can accomplish this end by assisting defense counsel in the preparation for cross-examination of the expert or by testifying themselves.

In a tax fraud case, the services of a tax lawyer, an accountant, or a retired Internal Revenue special agent often provide the margin between victory and defeat. Former agents are especially useful.

It is imperative, however, for the attorney who hires an expert, such as an accountant, to take steps to insure that the attorney-client privilege remains intact. The attorney-client privilege inures to the client and includes all the office employees of the attorney. It is also available to a corporation. The privilege, of course, belongs to the client, who can waive it. This same privilege, however, does not exist between a client and any other experts, such as accountants, who have provided a service to the client prior to the inception of a criminal prosecution.

Even when state statutes have created a privilege between an accountant and a client, some federal courts have held that the statutes provide no protection in a criminal case. Thus, you should retain directly a new accountant who has no prior relationship with your client. The court, in United States v. Kovel, extended the attorney-client privilege to an accountant employed by a law office who communicated directly with the client, as long as the communication was in confidence and for the purpose of obtaining legal advice.

The expert consultant or witness should sign a contract expressly stating that he or she is an employee of the law office in connection with the case and that he or she expressly recognizes the existence of the attorney-client privilege and will not violate it. The lawyer should pay the expert directly.

Humanizing the Defendant: Considerations for Trial Preparation

Frequently a built-in advantage in the defense of a professional or a business person is the defendant. In preparing a defense, you must seek ways in which to inform the jury about your client’s accomplishments, family, religious affiliations, civic activities, and the like. Paint the picture of a self-made man or woman who has not lost touch with the average working person.

One means by which to accomplish this is to call character witnesses. If you choose to call them, it is best to call some high-profile witnesses, such as fellow professionals or public figures who may impress the jury, as well as some ordinary people so that you do not create the impression that your client is a snob. Generally, the good character of a defendant cannot be proven by specific good acts according to Federal Rules of Evidence 405. However, section (b) provides that in cases in which character or a character trait of a person is an essential element of a charge, claim, or defense, proof also may be made of specific instances of the defendant’s conduct.

Defense witnesses are subject to cross-examination into relevant specific instances of conduct. You can certainly prepare the witnesses to exercise their rights to explain their answers in response to the prosecution’s cross-examination. The witnesses then may be able to testify on cross-examination as to specific acts that are relevant to the good character of the defendant.

The defendant’s family should attend the trial. Both defendant and family members should dress conservatively, should avoid furs, jewelry, and extreme makeup, but should not dress out of character. Their appearance should not invoke the jealousy or criticism of the jury.

You should consider moving to have the client appointed co-counsel and allow him or her to participate to a limited extent in voir dire: “My name is Dr. Jones. My lawyer, Mr. Davis, who is experienced in these matters, will ask you some questions so that we can pick the most intelligent and fair jury possible. I ask you to bear with us.” This will further serve to humanize the client.

Be sure to advise your client on certain matters. Remind your client to say “Yes, Sir” and “No, Sir” and to show respect to the judge, prosecutor, and all courtroom personnel. Make sure that the defendant never loses his or her temper in court or appears arrogant or condescending. At all times your client should be cordial and use “open” body language. He or she should exude sincerity and concentrate on communicating with the jury, not on matching wits with the prosecutor. The defendant should speak to the jurors and should make eye contact, without staring at them.

By your actions, you should impress upon the jury that you like your client. Put your arm around your client; touch your client in the closing argument; walk the defendant in front of the jury box during part of your closing argument; sit close to each other at counsel table.

This type of client often is well suited to testify. This decision must always be considered and carefully made. Every person accused of a crime is under some pressure to testify, for the jury may draw an un-favorable inference from silence. However, this disadvantage may be slight compared to the problems that may arise on cross-examination. On the other hand, a successful performance on the part of a defendant may be the difference between an acquittal or a conviction.

Publicity

Because of social prominence, the professional defendant is more likely to attract media attention than almost any other class of defendant. This has a strong negative effect on the possibility of a fair trial. It seems incongruous that, in light of the stringent proscriptions of the Code of Professional Responsibility and Canons of Judicial Ethics of the American Bar Association, so many cases are conducted in a circus-like atmosphere. Prosecutors sometimes stage media events. The media may be invited to attend arrests or stages of the proceedings or may be tipped off on sensitive aspects of the case so as to prejudice the defendant. These actions are harmful and must be controlled.

There are several approaches that may be followed. Many courts have local rules limiting or prohibiting participation in publicity-generating activities. Defense lawyers should invoke these local rules quickly to protect their clients.

If the Code or the Canons are ignored by the prosecutor, you should warn the prosecutor in a certified letter with a copy to the trial judge that the defense will seek sanctions with the state bar; then do so if the prosecutor does not cease the misconduct.

You might also consider bringing suit for common law tortious interference with a business relationship, at the same time seeking an injunction naming the prosecutor individually as a defendant. If you cannot stop the misconduct and the harmful publicity, call a news conference and manipulate the media to your advantage. Be certain that you have studied and understand the Canons and Code so that you do not step outside the bounds of ethical conduct. If your client is newsworthy, you will have ready access to the news media.

Conclusion

Representation of the “professional person” defendant presents the defense lawyer with an opportunity to participate in a truly rewarding advocacy experience, but it should only be undertaken with full awareness of the responsibilities such representation entails.

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Mild to Moderate Brain Injuries: A Silent Epidemic

January 13th, 2009 by admin 2 comments »
E. Marcus Davis
Davis, Zipperman, Kirschenbaum & Lotito, L.L.P.
918 Ponce De Leon Ave., N.E.
Atlanta, Georgia 30306
Phone: (404) 688-2000
Facsimile: (404) 872-1622

A third-year law student’s car is rear-ended by a tractor-trailer truck. The student experiences a brief period of dizziness, overwhelming fatigue, and vision problems. The student later finds that he cannot concentrate or retain information from his case books. He begins to experience mood swings and depression.

  • During a car collision, a 62-year-old sculptor hits her head on the car roof. She later finds out that she can no longer conceptualize or finish a sculpture.

  • In a head-on collision, a bartender is thrown against the dashboard. He sustains facial bone fractures and loses consciousness. Later he discovers that he cannot remember patrons‘drink orders, although before the collision he had been able to keep track of 20 at a time.

  • Another auto accident victim, a 25-year-old computer programmer, now finds that she gets lost driving to work. She can no longer do her job without making lists of every task to be completed and taking notes on every conversation she has. She begins to have heated arguments with her husband.

The personal injury lawyer who has had no prior experience with head-injury cases might dismiss the vague, seemingly unrelated symptoms in any one of these cases as the complaints of a hypochondriac. That lawyer could easily focus only on a soft-tissue neck injury claim and miss the much more important brain-injury claim.

Plaintiffs’ lawyers are well aware of the epidemic of orthopedic injuries (fractures) and soft-tissue injuries (torn or bruised ligaments, muscles, and nerves) caused by accidents involving transportation vehicles, construction equipment, or falls. Both types anatomical damage can easily be recognized and diagnosed, often by a lay person. But mild to moderate brain damage associated with the same accidents frequently goes undiagnosed even by medical experts.

Each year, head injuries cause 100,000 deaths in this country, and an estimated 1.5 million Americans sustain head injuries that require medical attention. Roughly half these are minor and do not require hospitalization. The other half involve moderate to severe brain injury. Each year, 700,000 people with head injuries are admitted to hospitals. Each year, between 50,000 and 90,000 of them are unable to resume normal life. In 1983, more than $10.5 billion was spent on the care, treatment, and rehabilitation of people who have suffered head injuries.

An even larger number of brain-injured people are undiagnosed. They may be seen in emergency rooms by doctors who tell them that they will recover from brain-trauma-related complaints or they may never get medical attention. Thus, these people may not realize that they have sustained brain injuries and that their ensuing cognitive problems are real and have a definite cause. They are the victims of what experts call “a silent epidemic.”

Many of them will seek legal counsel to obtain compensation for more obvious but far less significant injuries, such as fractures or cervical strain or sprain. Personal injury lawyers when recognize signs of brain injury can provide invaluable assistance to these clients by referring them to medical care providers skilled in the diagnosis and treatment of mild to moderate brain injuries. Getting them medical help is a satisfying adjunct to fulfilling the more traditional lawyer’s role of helping them obtain full and fair compensation for all their injuries-head injuries included.

Signs of Damage

Brain injury causes physical, cognitive, and psychosocial impairment. Physical effects can include headaches; lack of coordination; muscle spasticity; paralysis; seizures; and speech, hearing, vision, tactile, and olfactory dysfunction. On a cognitive level, there maybe memory deficits; concentration problems; slowed thinking; and problems with perception, sequencing, judgment, and communication, including impaired reading and writing skills. Possible psychosocial consequences include behavioral and emotional dysfunction; lack of motivation; and emotional lability (volatility), including excessive laughing or a general difficulty in relating to others.

Many personal injury attorneys have accident-victim clients who complain of problems with organizing their thoughts, keeping track of things, selecting the right word in speaking, doing their jobs as well as before, getting along with family and friends, learning new things or retaining information, or finding their way from place to place. They may complain of headaches, dizziness, double vision, hypersensitivity to light or sound, or fear and confusion when in crowds. Many of these symptoms come under the diagnostic catch-all of “post-concussion syndrome.” Their presence makes it likely that a brain injury evaluation will prove fruitful.

Brain injury can be present in a person who never lost consciousness. In such cases, the alteration of consciousness caused by the blow to the head may have taken the form of a period of feeling dazed, confused, or agitated. The client who did not lose consciousness is less likely to have had the brain injury correctly diagnosed. This person will suffer severely because no one recognized that there is a physical basis for the deficits.

People with mild to moderate brain injury are beset by residual problems that usually escape detection in ordinary medical examinations. Because these problems are undefined or improperly defined, they become more frightening and debilitating. These victims may simply decide that they are going crazy for reasons unrelated to the original trauma. Often they are misunderstood by their families, co-workers, and communities. Often they are accused of malingering.

Mechanics of Damage

How can a client have brain damage without having sustained a skull fracture, coma, or loss of consciousness? It is important to know some basic facts about brain anatomy in order to understand this type of injury. The brain lacks rigidity and strength, and is easily crushed or torn. Brain tissue is made up of billions of fine thread-like nerve fibers. It has the consistency of oatmeal or gelatin. The brain is protected externally by the rigid skull and internally by a cushioning bath of cerebrospinal fluid, which surrounds it and in which it floats. Most of this fluid is between the brain and the skull; the rest is in the ventricles (natural cavities in the brain).

The skull offers considerable protection because of its strength, but it does not protect perfectly due to its inner contours. The skull’s interior is not smooth, but characterized by sharp, bony protuberances. When something hits the head, the brain may be flung against these protuberances and torn or bruised.

Much of the early research on the type and Iocation of damage to the brain that results from its movement within the skull was conducted by a physicist, A.H.S. Holbourn, during the mid-1940s. Using gelatin models of the brain encased in a skull, Holbourn delivered blows of measured intensity to specific points on the skull. He reported that the irregularities in the internal contour of the skull-its ridges and dural partitions-play a decisive role in determining the distribution of forces on the brain resulting from blows to the head. As the brain is moved within the skull, the tips of the frontal and temporal lobes are especially vulnerable to bruising due to their location within the skull.

Holbourn found the shearing effect caused by sliding brain tissue over bone to be responsible for much of the localized damage that occurs in both closed and open head injuries. When external forces cause rotational movement of the brain, as in a severe whiplash, wide-spread damage can also result.

U.S. government studies further documented such injuries in experiments with rhesus monkeys. The monkeys were placed in an automobile that was subjected to rapid acceleration and deceleration forces. The monkeys’ brains were later dissected to determine the extent of the injuries. In evaluating rotational and translational rigid body motions of the head after impact, this study proved that concussion, visible hemorrhages, and contusions of the brain surface can be produced without direct head impact.

In trauma to the brain, rotational and shearing effects may also case injury to the blood vessels (bruising). When the blood supply carried by capillaries to brain tissue is obstructed by injury, the brain cells are deprived of nourishment and die. In addition, coup contra coup injuries can occur when the brain bounces off one side of the skull’s interior and then strikes the opposite side-even without a blow to the head.

Control of different physical functions and mental operations may be quite localized. Injuries to small areas of the brain may have very specific and limited effects, while larger injuries affect more functions. The forebrain or frontal lobes control many intellectual abilities.

Injuries to the frontal lobes are specifically associated with poor judgment of the consequences of one’s actions; difficulties in planning, sequencing, and decision making; diminished awareness of social propriety; and loss of inhibition. The frontal lobes organize and regulate behavior necessary for accomplishment. They are critical to the “executive functions”-anticipating, selecting goals, self monitoring, using feedback, and completing purposeful activities.

The frontal lobes coordinate attention, memory, language, perception, motor functions, and social behavior. When their function is impaired, all other cognitive systems-even those that remain individually intact – are affected. People with frontal-lobe injuries may appear to lose all ambition. They may have trouble starting routine tasks; following a sequence of directions; and maintaining attention to tasks or situations that involve judgment, social reasoning, and inventive problem solving.

The brain is also divided into right and left hemispheres, each with specialized functions. Injury to the left hemisphere can cause difficulty with language, verbal and nonverbal communication, logic, calculation, and moods. It can also cause right visual-field neglect- impaired ability to register or process information from the right eye, even if the eye itself is undamaged. With damage to the right hemisphere, the injured person may experience poor vigilance, scanning and spatial-orientation problems, indifference and apathy, loss of inhibition, or left visual-field neglect.

Temporal-lobe damage diminishes the ability to recognize, process, and remember information that is heard-words, voices, and numbers. The injured person may also suffer from sound discrimination problems, temporal-lobe epilepsy, or language disturbance.

Detecting Damage

The diagnosis and evaluation of mild to moderate brain damage require special training and specialized diagnostic tools. Counsel should not rule out a possible brain injury simply because a neurologist, a neurosurgeon, or even a neuro-radiologist has not made such a diagnosis. These medical specialists use sophisticated diagnostic tools like computerized axial tomography (CAT) scanners, nuclear magnetic resonance imaging (called MRI, NMR. or simply “the magnet”), and electroencephalography (EEG). But they can only identify grand mal epileptic seizures or major anatomical injuries- macroscopic (as opposed to microscopic) injuries- for example, subdural hematomas and hemorrhages.

CAT scans cannot identify subtle or microscopic tissue damage. Nearby bone produces false readings, making defects in the frontal and temporal lobes difficult to visualize. MRI is often inadequate. In some cases, it cannot be used to identify even acute subarachnoid hemorrhaging, much less microscopic damage to axons and neurons. A substantial population of patients who appear normal in CAT or MRI studies actually have focal abnormalities-localized injuries to discrete parts of the brain-or severe neurological disability.

EEGs record gross brain activity. They often show normal readings on a patient with only moderate damage unless the patient actually has a seizure during the test. Many clients undergo standard neurological examinations and are advised that nothing is wrong because the only objective tissue damage is on a microscopic level and a brain autopsy would be necessary to reveal it.

Clinical Neuropsychologist

The clinical neuropsychologist, who specializes in the evaluation and treatment of brain damage, is a far better choice for diagnosing a person’s problems after minor head injury. In the area of mild to moderate brain damage, any well-trained neuropsychologist can usually out perform several million dollars’ worth of medical equipment. The trial lawyer can be of invaluable service to clients with complaints consistent with brain injury by referring them to a competent neuropsychologist for a diagnostic workup.

In addition to seeking word-of-mouth recommendations, a lawyer searching for a skilled neuropsychologist should make inquiries of the National Head Injury Foundation (NHIF) and local affiliates like the Georgia Association of the NHIF. These nonprofit organizations maintain lists of professional-neuropsychologists, psychiatrists, neurologists, and attorneys-with expertise in diagnosing, treating, rehabilitating, and representing head-injured persons.

Diagnostic Workup

A neuropsychologist’s examination involves an extended set of interviews and tests, requiring from 6 to I2 hours. The process includes both traditional psychological measures and more refined tests that map specific cognitive functions under varying conditions.

A typical test battery (for example, the Halstead-Reitan Test Battery) includes the Wechsler Adult Intelligence Scale Revised (WAIS-R). The Halstead-Reitan Test Battery is particularly useful to the trial lawyer because it tests many different mental and physical functions and, accordingly, the different sectors of the brain that control those functions. It therefore generates information about specific parts that are not functioning properly.

Also, some Wechsler subtests, and thus the areas of brain function they test, seem to be insensitive in mild to moderate brain injury. Thus an estimate can also be made as to the client’s pre-injury IQ, even though the overall post-injury IQ score will be lower.

Among the tests of the brain’s executive functions are the Complex Figure Test, the Wisconsin Card Sorting Test, and the Category Test. Language skills are measured by the Controlled Oral Word Association Test and the Boston Naming Test. Verbal memory is evaluated using the Auditory Verbal Learning Test (known as AVLT) or the California Auditory Verbal Learning Test.

Attention is tested with the Wechsler Memory Scale, the Trail Making Test, and the Stroop Test. The Complex Figure Test assesses organizational efficiency, visuo-motor memory, and the retention of motor information over time. Visuo-motor function can be evaluated with the Bender-Gestlat test. Tests to determine emotional status include the Minnesota Multiphasic Personality Inventory Test (MMPI), the Thematic Apperception Test, and the Rorschach Test.

Other tests not always employed in neuropsychological evaluations may also prove useful. The Brain Electrical Activity Mapping (BEAM) test, a computerized EEG, compares a head-injured person’s responses to visual and auditory stimuli with those of a normal person. The BEAM test is particularly useful in the courtroom because it provides an excellent visual aid for demonstrating brain injury.

Positive Emission Tomography (PET) scans can detect regions of dysfunction that are manifested by deceased glucose metabolism.

Evoked potential testing can determine if there is widespread damage to the brain on a microscopic level. Electrodes are placed at the wrist’s medial nerve and the posterior tibial nerve of the ankle. The test measures the degree and speed of the brain’s response when the upper and lower extremities are electrically stimulated.

For test findings to be useful as evidence in court, the results must provide more than just an assessment of the client’s current level of functioning. They should also address the client’s premorbid functional level, as demonstrated by school records, Scholastic Aptitude Test scores, occupational level, and the quality and stability of relationships.

The neuropsychological report should delineate to what degree current deficiencies represent loss or deterioration since the injury. The report should also offer an opinion on the degree of loss of the client’s educational, occupational, and interpersonal potential.

The emotional response of the brain-injured person to the injury is an important element of damages. Often he or she feels a loss of the sense of self and becomes profoundly depressed. The pain and suffering the client experiences due to this emotional trauma is an important part of this type of personal injury claim. Changes in intellectual and body images are often accompanied by loss of self-esteem. Confidence in the ability to negotiate life smoothly and efficiently may be lost. The head-injury survivor is entitled to compensation for these losses as part of the pain and suffering claim.

The spouse’s loss of consortium is an-other important area of damages. The brain-injured person may be so changed at times that he or she becomes, for all practical purposes, a different person- someone who behaves differently, thinks differently, exhibits a different sex drive, and has different interests from the pre-injury person. Usually the marriage is severely affected and the couple may well divorce.

The spouse may have lost the person he or she married as truly as if by death. Yet because the person still looks the same, society neither recognizes the spouse’s grief nor provides the support and comfort that those bereaved by death are given. The spouse cannot divorce in good conscience or mourn with dignity. The spouse is entitled to have this tragedy recognized and to be compensated for the loss.

Sleep disturbance is another area of damages that should he explored. Sleep patterns may be significantly altered by brief but frequent seizure activity. These seizures may not be perceptible to the patient, since they occur during sleep, but they can seriously disrupt normal rest. As a result, the injured person feels exhausted all the time. For some, an anti-seizure medication such as Tegretal will prove therapeutic. For others, the source of fatigue is an injury to the brain stem, and it cannot be relieved by this type of medication.

Usually the most significant area of special damages is the cost of treatment and rehabilitation. Most of the expense for treatment for brain injury is incurred in the first post-injury year, which is also when most recovery occurs. Expensive in-patient treatment at a residential facility may be required. Deficits remaining after that point may include marked and persistent defects in cognitive functioning. Costly cognitive retraining, which could last for years, may be necessary next.

Although definitive research on the point is not yet available, it appears that cognitive defects have a permanent deleterious effect on the patient’s everyday life. The most consistent residual clinical problems faced by the head-injury survivor are disordered verbal and nonverbal learning and faulty memory. Depression is also common.

Learning to Cope

The injured person can learn to compensate for many, but not all, deficits rooted in permanent damage to brain tissue. Long-term recovery is based on the body’s ability to use the remaining undamaged brain tissue-tissue not fully used before the injury.

Cognitive rehabilitation is designed to train this unused brain tissue to take over for the damaged areas. It also teaches the patient new methods of coping-for example, taking frequent notes in everyday life to compensate for memory loss.

The client must receive rehabilitation that addresses cognitive deficits, emotional damage, and resulting behavioral problems. The objective of this treatment is the permanent resolution of the person’s emotional distress as well as his or her reintegration into the community. According to one prominent neuropsychologist, omitting any of these components in treatment can lead to the ultimate failure of treatment as a whole. Including all three can lead to a “whole person treatment approach to which patients with minor brain injury respond favorably.”

Cognitive remediation, as this type of therapy is called combines cognitive psychology, neurology, remedial education, and psychotherapy. The therapist attempts to restore thinking and problem-solving skills and to reteach social skills.

Both acute and long-term rehabilitation can be provided on an extended inpatient basis or on an outpatient basis. Remediation usually includes therapy sessions in the neuropsychologist’s office and homework performed by the patient on a computer terminal.

Trial lawyers who become familiar with this type of injury will find many cases of mild to moderate brain injuries in their own practices that were previously unrecognized. These lawyers will be sought out by other practitioners who have taken such cases but lack the expertise to handle them. Certainly, this field is worth mastering for the benefit of the victims of this silent epidemic.

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The Basics of Handling Trucking Injury Cases

December 17th, 2008 by admin No comments »
E. Marcus Davis Davis, Zipperman, Kirschenbaum & Lotito, L.L.P.
918 Ponce De Leon Ave., N.E. Atlanta, Georgia 30306 Phone: (404) 688-2000 Facsimile:
(404) 872-1622

“Fiber
Evidence”

Preparation and investigation are crucial for properly handling trucking cases. It is important for the lawyer of a person injured by a negligent trucker to subpoena records from former and subsequent employers, driver medical records, cell phone records, credit card statements, safety consultants, DOT records, and tax returns. It is critical to discover records relevant to the driver’s training, abilities and past driving history, including applications for employment, incident and training reports, log violations or falsifications, disciplinary actions and termination. If the driver was terminated from a prior job and deemed unsuitable to drive for that company, documents evidencing that decision can be used to demonstrate that the defendant trucking company was negligent in hiring the driver. It is beneficial to move forward from the date of the accident and subpoena the records of all subsequent employers of the driver as well. The driver’s DOT records, medical records and cell phone records must also be subpoenaed.

Any and all records generated or maintained by the DOT on the defendant trucking company should be subpoenaed, as such records contain noted safety violations committed by the trucking company and/or it’s drivers. Many trucking companies hire independent consulting firms to handle DOT compliance issues, log reviews and general safety matters. These records should be subpoenaed. Fueling and maintenance records should be compared with driving logs to demonstrate log falsifications and violations on behalf of the driver as well as negligent supervision on behalf of the trucking company.

In heavy trucks, a black box recording device is usually incorporated into the driver’s electronic control module. The data recorder (ECM), which is activated whenever a hard braking event occurs, can provide information concerning vehicle speed, throttle position, brake application, clutch status, changes in the vehicles velocity due to acceleration or deceleration ("delta-v"), mileage, average driving speed and maximum recorded speed. A number of trucking companies also use global positioning satellite technology, which can yield detailed information concerning the position and movement of the truck.

A lawyer, experienced in trucking accidents, will hire an accident reconstructionist or engineer early before the scene is altered or the vehicles are repaired or scrapped. The reconstructionist/engineer should be sent to inspect the scene and the vehicles and have the contents of any of the vehicles electronic "black boxes" downloaded and preserved.

The experienced trucking lawyer should send formal discovery requests and Freedom of Information Act requests to government agencies such as DOT, ICC, OSHA and the Georgia Department of Motor Vehicles. A "spoliation" letter (example spoliation letter) should be sent early to the trucking company defendant to require preservation of evidence.

All motorists are required to know the rules of the road. Truck drivers, however, are in a special situation. They are professionals. They are paid to drive and the vehicles they drive are complex pieces of machinery. Trucks are much heavier than automobile and passenger vans. They are more difficult to maneuver and require a much greater distance to stop. When trucks are involved in motor vehicle collisions, serious bodily injury or death often results. The purpose of the Federal Motor Carrier Safety Regulations is to create uniform standards of travel and thereby promote public safety by helping to prevent truck collisions.

The FMCSR has been adopted by the State of Georgia. Part 390.3(e), requires that all motor carriers, their employees and drivers, shall be knowledgeable of and comply with the FMCSR. This section requires that carriers instruct each of their drivers regarding all applicable rules and regulations of the FMCSR. Courts throughout the United States have consistently held that the violations of provisions of the FMCSR by a driver and/or his carriers can form the basis for a negligence per se jury instruction or negligence as a matter of law.

Additionally, courts have recognized that punitive damages may be warranted against both the driver and the company when the company blatantly ignores safety provisions of the FMCSR and this conduct leads to a tragic collision. Trucking companies are required to have safety programs in place to ensure compliance with various safety requirement contained in the regulations. The FMCSR requires diligence on the part of the trucking company, not only when it hires the driver, but also during the time when it employs the driver to operate a vehicle. The trucking company must obtain each drivers report of accidents and violations. The trucking company supervision obligations under the FMCSR also include closely monitoring the hours that a driver actually drives a motor vehicle to ensure that the driver files correct logs and does not cheat and work in excess of the maximum number of hours permitted. The FMCSR requires that all trucking companies shall systematically repair and maintain, or cause to be systematically inspected, repaired and maintained all motor vehicles subject to it’s control. This general duty of a trucking company to maintain it’s vehicles in good working order includes a duty to maintain repair records and inspection reports, the duty to maintain driver reports, which are to be filed by a driver each day on each vehicle driven and a duty to make periodic inspections of each vehicle. The failure to maintain a vehicle in proper working order and in a safe condition can be the basis for a compensatory damage claim against the trucking company. A trucking company that breaches this duty to maintain its vehicles in a safe condition can also be subject to a claim for punitive damages for putting a defective vehicle on the roadway.

The Federal Motorist Carrier Safety Regulations codify specific trucking safety rules. FMCSR 392.3 prohibits any driver from operating a truck when his ability or alertness is so impaired through fatigue illness or any other cause, making it unsafe for him to drive. FMCSR 392.4 prohibits the use of any amphetamines or "pep pills" while driving and 392.5 prohibits any use of alcohol by a driver within four hours before going on duty. FMCSR 392.7 requires a driver to make pre-trip inspection of his vehicle to determine that the specified parts and accessories are in good working order. Records of these inspections must be kept. 392.8 requires that a driver inspect the emergency equipment on his vehicle to make sure it is in good working order for driving. 392.9 makes the driver responsible for making sure that his vehicle has been properly loaded and also provides that a driver is to examine his load and the load securing devices within the first 25 miles after beginning a trip and thereafter every 3 hours or 150 miles of driving, whichever occurs first. Section 392.14 requires using extreme caution in the operations of the truck during hazardous conditions such as those caused by the snow, rain, etc., which adversely affect disability or traction. This section states that speed shall be reduced when such conditions exist. The commercial driver’s license manual indicates that wet roads can double stopping distance and speed should be reduced by 1/3 e.g. slow from 55 to about 35 miles per hour on a wet road. Truckers routinely do not follow these instructions, as is obvious whenever you drive on an interstate.

Once a decision was made by our government to allow the extremely dangerous vehicles commonly referred to as "semi’s" or tractor trailers on our nations highways, the FMCSR was written to promote safety and reduce the risk of truck collisions. It is common for trucking companies and their drivers to routinely ignore or violate the safety provisions of the FMCSR in order to maximize profit. When that occurs, and a member of the general public is maimed or killed as a result, a skilled plaintiff’s counsel, who is well-versed in the FMCSR, can ensure that justice will prevail. Thus, a citizen injured by a negligent trucker should hire a lawyer who has demonstrated knowledge, training and experience in truck litigation.

Trucking Licenses

According to government investigators, fraudulent licensing schemes have been revealed in 24 States per the Department of Transportation. Consequently, unskilled drivers are sometimes operating dangerous commercial vehicles on the nation’s highways causing death, injury and property damage.

NAFTA

Mexican trucks operating under NAFTA frequently are far less safe than U.S. trucks. 57 Mexican truck companies have been given full access to U.S. highways under the North American Free Trade Agreement.

Cell Phone Usage

Cell phones are frequently the cause of tractor trailer wrecks. One study by the national institute for health has shown that talking on the cell phone causes drivers to be less safe equivalent to having two or three alcohol drinks before driving. Trucking accident lawyers know to subpoena cell phone records which can show whether a cell phone was in use at the time of a wreck and also can show the speed of the truck over time by comparing the location of cell phone calls and cell phone towers along the route of the trucks call from origin to destination. Some trucking companies have safety rules forbidding the use of cell phones while driving a company truck. Cell phone with hand free technology is safer. However, even using these phones causes much less safe driving because drivers are distracted by the content of the phone call.

Many good companies, such as Waste Management, have in-house safety videos and manuals for drivers. These companies require driver orientation and that drivers pass safety tests, before drivers are allowed to drive company vehicles. Experienced trucking accident lawyers know to subpoena these video tapes and manuals to document when drivers are violating the companies own appropriate safety rules and safety standards.

Tractor Trailer Wrecks/Safety
Statistics:

  • 5,000 people died in 2006 in accidents involving large trucks.
    106, 000 people were injured.
  • Of the deaths 85% of them were not located in the truck but
    instead in vehicles crushed by large tractor trailers.
  • Large trucks are nearly twice as likely to be involved in a
    fatal accident as passenger cars.
  • The high fatal involvement rate is caused by the huge disparity
    in size and weight between large transfer trucks and passenger cars, vans and
    SUV’s.
  • The National Highway Transportation Safety Administration,
    NHTSA, estimates that almost half of accidents involving large trucks may be the
    result of driver fatigue resulting in driver error.
  • Research by the Insurance Institute for Highway Safety has found
    that truck drivers behind the wheel for more than 8 hours have twice the risk of
    being involved in a wreck.
  • In a survey taken in 2005, 20% of truckers reported falling
    asleep at the wheel at least once during the previous month.
  • Transportation experts estimate up to a third of all commercial
    trucks on the highways exceed allowable weight limits.
  • The Department of Transportation believes that 15% of fatal
    truck wrecks involve overweight rigs.

There are 700,000 registered motor carriers. The Federal Motor Carrier Safety Regulations create a higher standard of care than State law: 49 CFR 392.2. Inexperienced lawyers handling trucking cases may not know of this higher standard of care which is designed to protect the motoring public. With commercial motor vehicles weighing over 26,000 pounds, the safety duties of the driver and the owner of company are the same. Laws state that if you own a rig as an independent owner/operator and lease it to a large company, you are an employee of the enterprise you lease the vehicle to. Thus, the driver and the company are liable to injured parties. Federal motor carriers are required to hire qualified drivers. Sometimes, companies don’t do their homework and hire drivers who don’t have correct commercial driver’s licenses or a record of negligent driving. Some lawyers are not aware that the CDL manuals require a speed reduction of one-third in bad weather. More commonly than not, truckers do not reduce their speed at all in bad weather, even though their time to react and stopping distances are markedly increased.

Trucking companies have experienced law firms, which represent them on retainer. Frequently, a "rapid response team" of lawyers and engineers will go to the scene of a truck wreck and amass all of the evidence, including taking measurements, photographs and interviewing witnesses, etc. To level the playing field, an injured person needs an experienced plaintiff’s lawyer who will conduct a rapid investigation of the truck and accident scene before the evidence is destroyed or dissipated by time and weather.

Lawyers representing persons injured by trucks must know about the Federal Motor Carrier Safety Regulations, especially the rules concerning drugs and alcohol, safety and fitness, minimum levels of financial responsibility, qualifications of drivers, hours of service, inspection repair and maintenance.

Plaintiff’s lawyers need to adequately develop needed expert testimony. Inexperienced lawyers may choose the wrong expert or miss a critical expert such as in conspicuity and human factors. Experienced plaintiff lawyers must also be able to define simple math terms and engineering terms and engineering concepts related to air brakes.

Some trucks now have advanced state of the art technology in use. Electronic Control Modules, ECM, store engine data. There is an affirmative duty to disclose the data during litigation as it is electronically stored information under "E" discovery rules in federal courts and some state courts. Some trucks have endcap cameras. Most trucking companies have dispatch and maintenance departments which store records and a qualified plaintiff’s lawyers should know to obtain these records. These departments are the hub of information for trucking companies.

Some plaintiff’s lawyers do not know that there is separate insurance for the tractor and the trailer as well as excess insurance coverage.

A passenger vehicle doesn’t stand a chance against an 18 wheeler weighing more than 80,000 pounds. More than 2 million tractor trailers are registered to drivers in America. The Federal Motor Carrier Safety Regulations Title 49, part 353-399 govern all vehicles engaged in interstate traffic. Most states have adopted FMCSR as State Law.

Drivers and their employers must keep log books, fuel receipts and other trip documentation for six months and vehicle maintenance records for a year. Some dishonest trucking companies or drivers alter or forge records, especially after a wreck with respect to the number of hours driven. Some truckers ignore Federal Regulations limiting the number of hours they may drive. This can result in a wreck.

Truck drivers can be held liable for personal injuries or wrongful death caused by their negligence and their failure to use due care in the operation of their trucks. Employers are liable for the negligence of their employee truck drivers.

Employers may be directly liable if they hire untrained or incompetent drivers or if they had reason to know the driver was no longer qualified.

Sometimes a truck can be loaded by a third party who may be liable for negligent loading, if their actions cause a load to shift or fall from the truck causing injury.

If the truck was defectively or not properly designed, the manufacturer of the truck or trailer or the manufacturer of the component parts may be liable for the negligence and for product liability.

Trucks involved in interstate commerce will have a minimum of $750,000 in liability insurance and sometimes even more. In certain situations, if hazardous materials are being transported, larger limits of liability insurance coverage is required by federal law.

Some common factors resulting in truck accidents include:

  • Rushed deliveries
  • Driver fatigue, exhaustion, lack of sleep
  • Improperly trained or inexperienced driver
  • Driver under the influence of drugs or alcohol
  • Aggressive driving
  • Driver with a history of dangerous or reckless driving
  • Driving or speeding to too fast for road conditions
  • Oversized or overloaded vehicles
  • Unsafe reflector lights or other safety equipment on vehicle
    poorly maintained
  • Poorly maintained or adjusted brakes
  • Poorly maintained vehicles
  • Disabled ABS brakes
  • Driver error
  • Blind spots
  • Missing mirrors
  • Driver stress
  • Inattention
  • Backing carelessly
  • Shifting loads
  • Spilled loads
  • Sudden stops
  • Overturning trucks
  • Failure to inspect
  • Driver distracted by cell phones or on board computers
  • In the case of trucking wreck, defendants are liable for
    economic losses including:
  • Medical expenses
  • Lost earnings
  • Burial costs
  • Damage and loss of property
  • Cost of repair or replacement
  • Cost of obtaining substitute domestic services
  • Loss of employment
  • Loss of business or employment opportunities
  • Non-economic losses include:
  • Pain
  • Suffering
  • Emotional distress
  • Loss of society and companionship
  • Loss of consortium
  • Loss of enjoyment of life
  • Loss of sexual relations
  • Loss of enjoyment
  • Disfigurement

Also, plaintiffs are entitled to recover for aggravation of pre-existing conditions.

Punitive damages can be awarded if the jury finds clear and convincing evidence that defendant’s conduct was done with willful and conscious disregard for the safety of the plaintiff or others. In cases where these damages are available, they provide the plaintiff’s attorney with a powerful weapon if the attorney gathers the appropriate evidence. Key factors around punitive damages include: how bad the defendant’s conduct is, the wealth of the defendant as well as statutory or constitutional limits on the amount of punitive damages. Intentional driver log violations, overhours, rushed delivery cases and intentional disabling of safety devices such as ABS brakes are examples of where punitive damages may be sought.

Damages can be awarded for brain injuries including skull fractures, diffuse axonal injuries, concussions and contusions, coma, coup- contra-coup and hematomas and seizures. Traumatic brain injures create inattention, forgetfulness, and memory problems. In addition, some mild brain injuries can cause irritability, depression, fainting spells, seizures, loss of eyesight and hearing loss.

Trucking accidents can result in several types of spinal injuries including quadriplegia, also known as tetraplegia. This injury can result in loss of feeling and function of the arms and legs, severe pain, loss of bowel and bladder control, muscle spasm, sexual dysfunction, loss of fertility as well as shortened life span. Quadriplegia occurs when the spinal cord is severed from the shoulder and neck area. The result stops mobility and dulls sensation and motor function of the lower body. This often results in respiratory conditions requiring the patient being mechanically ventilated on a machine, as well as digestion and excretion problems.

Herniated Disc/Back Injuries

Trucking wrecks also can cause herniated disc and bulging discs. If a disc is forced out of place in a trucking wreck, it places great pressure on the human spinal canal. Often the herniated disc victim, will experience severe pain in their extremities including leg pain and arm pain. Common complaints of bulging disc injuries include back pain, neck and shoulder pain. Many people who are involved in tractor trailer crashes are immediately not aware of their injury because they are in shock and their body has produced adrenaline. Adrenaline can cause a feeling of euphoria that covers up serious injuries. Sometimes, traffic trailer wrecks can cause facet-joint syndrome and chronic pain. If the facet joints get inflamed due to a tractor trailer wreck, arthritis can develop into chronic pain syndrome. One of the most common symptoms of facet joint syndrome is lower back pain.

Burns

Some trucking wrecks cause burns because fuel tanks are damaged and fuel is leaked and ignited. This is a major cause of explosion. The average medical expense for a burn victim is around $200,000.00. Burn injuries are a major cause of disfigurement and physical defects. Burn injuries are a major problem because of their life long emotional effects. Many tractor trailer or trucking wrecks result in wrongful death. If a driver of a tractor trailer causes the death of the other vehicles driver, then the driver and his employer are responsible for damages, both economic and non-economic.

Damages under wrongful death include:

  • Loss of income
  • Loss of financial support
  • Pain and suffering
  • Medical expenses
  • Loss of guidance, moral support, society, consortium,
    companionship
  • Loss of affection
  • Loss of love
  • Loss of training and counsel
  • Funeral bills

Georgia Trucking Rules

The Georgia Legislature in the 1930’s created the public service division. In the 1970’s the Public Service Commission adopted the Federal Motor Carrier Safety Rules, which are enforced by the Georgia State Patrol. In 2005, enforcement was moved to the Motor Carrier Compliance Division of the Department of Public Safety. Since 1972, Georgia has adopted Federal Motor Carrier Safety Regulations. The safety rules apply to both interstate and intrastate commerce. The CMV safety rules apply to vehicles over 10,001 pounds or 8 or more passengers for compensation. Trucking documents under Georgia law and the Federal Motor carriers safety regulations require that records be kept for three months for driver post inspection reports, six months for log books, three years for the accident register and three years for medical examined driver record and violation reviews.

An 80,000 pound tractor trailer striking a 2,000 pound passenger car can have devastating effects and cause devastating personal injuries or death. Collisions of this sort require the injured party and their family to obtain the best possible experienced counsel. E. Marcus Davis has a successful track record in handling trucking litigation. Call us for a free consultation and we will be happy to explore whether our firm is the right fit for you and your family to ensure that you obtain complete compensation for your injuries or loss of life. We work on a contingency fee basis and fees are charged only if we win your case.

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How to Select the Best Traumatic Brain Injury Lawyer

December 17th, 2008 by admin No comments »
E. Marcus Davis
Davis, Zipperman, Kirschenbaum & Lotito, L.L.P.
918 Ponce De Leon Ave., N.E.
Atlanta, Georgia 30306
Phone: (404) 688-2000
Facsimile: (404) 872-1622

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.

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.

CONFIDENTIALITY ISSUES

You should ask the lawyer whether he will respect your confidentiality with family members and medical care providers. In other words, ask him/her whether he/she will refuse to disclose confidential information such as psychiatric history without your permission.

GOVERNMENTAL BENEFITS/ INSURANCE SUBROGATION/ REIMBURSEMENT

You should ask the attorney what he/she knows about how social security (SSI), Medicaid, state and local disability programs, impact your case. You need to ask whether or not your health insurance company will insist on reimbursement pursuant to a subrogation clause in the contract. This is a murky area for trial lawyers, because the laws are constantly evolving. A Georgia statute provides that the insurance company should not be entitled to reimbursement if the client has not been “made whole”or fully compensated. If you are interviewing with lawyers on behalf of a client who is mentally disabled as a result of a traumatic brain injury, you must understand that when a lawyer reasonably believes that the client can not adequately act in the clients own interest, a lawyer may seek the appointment of a guardian of the person or property of the client or take other protective action with respect to the client. In that case the Probate court will most likely undertake a “hands on” role in the management of the client’s settlement proceeds, so as to protect the corpus of the client’s estate.

DISCOVERY OF THE CLIENT’S MEDICAL RECORDS

If a case is filed on behalf of a traumatically brain injured client, the defense firms will, no doubt, use all of the data bases at their disposal to supeana all medical records no matter how remote in time and geography pertaining to the client. Sensitive and confidential materials concerning prior mental illness, criminal activity, divorces, will most likely be brought to light. If the Plaintiff’s attorney objects to producing confidential psychological or psychiatric materials, the privacy of these documents may be protected, however, to the great detriment to the case. Many judges would take the position that if the client puts their psychological status into issue, then prior psychiatric and psychological history must be revealed or in the alternative, the case will be dismissed. At a minimum, using the “privilege” to protect such matters, probably will hurt the case and detract from it’s value because it will appear the client is not being honest. If medical bills have been paid by a company health insurance plan governed by ERISA, certain laws and rules apply. ERISA plans by federal law preempt state laws on the subject of a requirement of being “made whole” before subrogation reimbursement applies. ERISA plans have, through federal law, draconian powers of enforcement against the client for recovery of medical expenses in the event that the client makes a recovery, and even against the client’s attorney. Payment by medicare and medicaid, also are subject to subrogation/reimbursement so that any recovery made by the client is subject to part of the client’s money being paid over to medicare or medicaid for reimbursement. Sometimes ERISA plans health insurance companies, medicare and medicaid will agree to compromise the amount claimed, or at least deduct for a prorate share of attorney’s fees and expenses, but sometimes they won’t. If these issues are not dealt with there is a possibility that the client will later be sued for reimbursement, long after the case is over. As a general rule, the subrogation rights of ERISA qualified self funded or self-insured employee medical benefit plans are enforceable against both the employee beneficiary and/or a third party tort feesor, who is held responsible for the injuries to the employee beneficiary. State statutes that limit or prohibit subrogation with regard to such plans, such as the Georgia statute which prohibits subrogation unless the client is fully compensated are generally preempted by ERISA Employer Retirement Income Security Act of 1974, ERISA, sec.1001-1461 Title 29 U.S. code, (Federal preemption sec. 1144A title 29 U.S. code). The lawyer should demonstrate to the client an awareness of state and federal statutory liens and/or subrogation, as well as health care provider claims. For you to fail to take affirmative action to pay medicare and medicaid plans for reimbursement may result in personal liability for you and your lawyer.

STRUCTURED SETTLEMENTS

Often times it is in the interest of the client who is disabled because of a traumatic brain injury to receive a structured settlement. Such settlements are worth considering because the interest earned on the annuity purchased with your recovery over time is not taxable to the client, if the structured settlement is made a part of the settlement and funded before the client receives the money. If the client receives the cash first, and then an annuity which has the same effect as a structured settlement is purchased, the income earned on the corpus of the money is taxable. Many clients who are not used to handling large sums of money particularly those who may have some mental disability as a result of traumatic brain injury, quickly fritter away their money for various reasons. Friends and family come out of the woodwork seeking loans. A compassionate client may well loan away large sums of money with no hope of repayment. Clients may buy extravagant presents for friends and family such as cars or houses. With a structured settlement there is a monthly check coming in and the most damage that can be done by poor money management is that months proceeds be spent. Hopefully the learning curve will be such that the client will learn not to waste the money over time, but the steady monthly income stream will still be available to protect the client’s financial well being and security over time in the event of a structured settlement. In the event a mentally disabled client who is not competent to handle his/her financial affairs does not want a structured settlement, a guardianship of a person or property would be advisable. In considering a structured settlement, the financial stability of the company should be assessed and considered. Grades from Moody’s. Standard and Dave’s and Best rating companies should be obtained. Depending on how the client is rated as to life expectancy due to overall health status, better pay outs can be obtained for clients who have a lesser life expectancy. Another consideration is whether or not to have the annuity continue on for a period of years certain following the death of the client, so that the spouse or children of the client are cared for over time. It is important to know that the attorney fee should only be applied to the present cash value to the settlement, not the total amount of the settlement over time. For example, an annuity purchased for $300,000.00 now may be worth 1.5 million over time, but the fee should be 100,000.00 not 500,000.00

SPECIAL NEEDS TRUSTS

Many competent trial lawyers in the field of traumatic brain injury, are not specialists in trust and estates, including special needs trusts. Sometimes special needs trusts are used to preserve eligibility for medicare, medicaid, or social security. The complex issues involved should be referred to a specialist in special needs trusts. See 1993 OBRA 42 USC 1396 p (d) 4 (A)

On August 10, 1993, President Clinton signed the 1993 Omnibus Budget Reconciliation act OBRA into law. A portion of the act has had significant impact on the use of settlement trusts. For the first time federal legislation authorizes and recognizes their validity while allowing eligibility for disability related benefit programs. The act also grants states a lien against the trust assets remaining at the death of the beneficiary to the extent of medicaid benefits rendered to that beneficiary. The relevant portion is codified at 42 USC Sec. 1396 p(d) The language of the cited provision has created confusion and conflicting interpretations state by state. New policies, regulations and statutes are being enacted as each state struggles to implement the new law. In special needs trusts. If there is any appearance of constructive or actual control by the beneficiary or his parents, guardian, or conservator, the trust efficacy could be negated. The issues relative to the use of the trust in regard to medicaid eligibility are in a constant state of flux. In a special need trusts, the co-trustee must obtain a federal employers tax identification number (“EIN”) or bank accounts must be opened for the trust. The co-trustees must maintain accurate and complete records of all trust activities and make annual reports and file trust tax returns. Most attorneys experienced in traumatic brain injury do an excellent job in the preparation, presentation and resolution of the case both in settlement discussion and litigation, however, many of these attorneys are woefully ignorant of the critical impact that funds received through settlement or judgement can have on the disabled client. Issues involved in competency to sign attorney/client agreements and releases and to properly hold and manage the proceeds of litigation must be considered. The attorney should also be aware that implications for eligibility for collateral source benefits from local, state, or federal programs available to the client as a result of the clients disability. As a severely disabled individual, the plaintiff could be eligible for local, state, and federal benefits based on his disability, such as titles, XVI and XIX of the Social Security Act (SSI and medicaid- 42 U.S.C. 1382 et seq) In order to be eligible for those benefits, Plaintiff may not have resources in more than $2,000.00 available to him. Assets held in guardianship or conservatorship accounts, historically the most common way to manage settlement funds for a disabled client are considered available to the plaintiff for purposes of eligibility determinations and could disqualify the plaintiff from receiving the benefits. Assets held in a properly drafted Special Needs Trusts are not considered available to the plaintiff because title to the assets does not transfer to the beneficiary in the same way that title to assets in a guardianship transfer to the ward. The Social Security Administration recognizes and acknowledges this difference. Eligibility for SSI and Medicaid benefits is important for far more than just the monthly income stream provided under SSI. The federal medicaid budget allocations go to each state to provide on going community and long term residential care for a great number of persons with a wide variety of disabilities. Also, expenditures to traditional medical areas often included are such things as: therapies, long term care, rehabilitation, group home or other living arrangements, sheltered workshops, work activity rehabilitation. By maintaining the plaintiff’s eligibility for SSI and Medicaid, an entire system of state services for social programs, residential alternatives, rehabilitation and case management is preserved. Most states adopt SSI and medicaid eligibility criteria for entrance into those programs. Sometimes the use of the trust as a financial investment and management vehicle is more economical than guardianship. On going reports to the court are minimized and thus court and attorney’s fees are reduced. Financial supervision and security for the client, so that assets are not squandered is not sacrificed. SSI eligibility criteria allow an applicant to have no more than $2,000.00 in liquid resources. Assets in a guardianship belong to the ward and are thus by definition available to him/her for purposes of benefit eligibility determinations. It is a rare plaintiff’s lawyer, experienced in traumatic brain injury, who is adequately familiar with the esoteric rules and regulations regarding Special Needs Trusts, but the attorney must at least be aware of the problems so as to know when and to whom to refer these matters for resolution to the client’s benefit.

CONCLUSION

The problem with the justice system as it relates to the brain injured client or any client for that matter, is that the only thing that it can deliver is money or punishment. In a perfect world the justice system could restore the injured person to full health, and his or her god given perfect brain function would be restored. Money, however, will not accomplish this. Brain cells such as axons, neurons, and dendrites once killed by an injury will not regenerate. Granted, sometimes new neuro-pathways will be created to try to compensate for the damage, but there is nothing the justice system can do to regrow damaged brain cells. Thus, TBI cases often make demands to the justice system, to which it simply can not respond. Certainly, there would be few if any brain injury victims who would take any amount of money willingly as a bargain for losing any part of their mental faculties. When the insurance companies or the corporations pay up, they do not flinch. For them the settlement is a mere accounting entry made on some ledger sheet or computer program by a clerk. Often times there is no apology, no admission of guilt, and even the settlement is confidential and secret. The defendant company then gets back to business to usual while the brain injured plaintiff gets back to the difficult, lifelong business of living a different, altered, brain injured life. Oftentimes the brain injury plaintiff would much rather settle than go through a long ugly trial where all of the sometimes painful and sordid details, are brought into issue in an effort by the insurance company to prove that the psychological elements associated with the brain injury are really nothing more that preexisting problems from life before the injury.

The best way for the client to navigate these difficult waters is to carefully select the most experienced, knowledgeable and compassionate trial lawyer possible for the job. Hopefully, some of the ideas contained in this paper will assist the traumatic brain injury survivor in the selection process, so that the best possible financial outcome will be reached and so that the stress fo going through the litigation process will be minimized.

Credit for explanation about special needs trust, guardianships, and the OBRA Act go to William L. E. Dussault, J.D. attorney practicing in Seattle Washington, who specializes in law for individuals who experience disabilities.

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