I. WHAT IS A TRAUMATIC BRAIN INJURY?
The Brain Injury Association of America has adopted the following definition of traumatic brain injury:
Traumatic brain injury is an insult to the brain, not of a degenerative or congenital nature, but caused by an external physical force, that may produce a diminished or altered state of consciousness, which results in an impairment of cognitive abilities or physical functioning. It can also result in the disturbance of behavioral or emotional functioning. These impairments may be either temporary or permanent and cause partial or total functional disability or psychosocial maladjustment.
You should always be alert to the possibility that your clients who have sustained trauma may have a TBI.
II. HOW MANY TRAUMATIC BRAIN INJURIES OCCUR?
You may think TBIs will not show up in your practice, but you would be surprised at how often they occur. Some often-cited statistics:
1. A conservative estimate puts the total number of traumatic brain injuries (TBI) at over two million per year, with 500,000 of these injuries severe enough to require hospitalization.
2. Every 15 seconds, someone sustains a brain injury in the United States ; every five minutes, one of those people will die and another will become permanently disabled.
3. TBI is the leading cause of death and disability in children and young adults.
4. Each year 75,000 to 100,000 Americans will die as a result of a TBI. Most deaths occur at the time of injury or within the first two hours of hospitalization.
5. Of those who survive their initial injury, approximately 70,000 to 90,000 will endure lifelong debilitating loss of function. An additional 2,000 will exist in a persistent vegetative state.
6. Young men between the ages of 15 and 24 have the highest rate of injury. Males are more likely to suffer serious brain injury than are females.
III. YOUR JOB IS TO CONVINCE THE JURY THAT YOUR CLIENT HAS A REAL AND TERRIBLE INJURY EVEN THOUGH – TO THE JURY – IT IS INVISIBLE.
In the past 20 years, there have been tremendous advances in trauma care, which have led to increased survival rates of people suffering from TBI. Even though a growing number of individuals survive these injuries, they may never fully recover to how they were prior to the injury.
The grim reality is that in order to improve the quality of life for TBI survivors and their families, and to make sure that justice has been served and just compensation has been achieved, the lawyer must present his or her ease effectively and convincingly. Most importantly, he or she must persuade the 12 men and women who matter most: the jury.
In preparing the case, the attorney will want to make use of medical and rehabilitation experts, vocational economic analysts, and lay witnesses to lay the elaborate foundation of the case: a “reconstruction” of the plaintiff’s life prior to his or her injury, in order to maximize the full amount of recovery.
Lay witness testimony, in conjunction with expert testimony and vocational analysis, is an extremely powerful tool in jury persuasion because it offers a three-dimensional personal glimpse into the life of the plaintiff prior to injury. Furthermore, it proves the true nature of the injury and the extent to which it will affect the client’s economic and non-economic future.
Lay witnesses are generally comprised of family members, relatives, friends, and coworkers who can accurately describe and produce a vivid picture of the plaintiff before and after the injury. The plaintiff’s spouse is a very significant lay witness in that he or she can testify to the economic damages resulting from the plaintiff’s lack of ability to work and produce economic means as well as damages stemming from loss of household services the daily maintenance and upkeep of the home and the reliance on outside economic sources, which has caused the couple to suffer financially.
Often individuals with traumatic brain injury are not diagnosed at all or misdiagnosed as soft tissue whiplash injuries, slight concussion injuries, or behavior problems, or even worse, misdiagnosed as having psychological problems. Signs to look for to indicate closed head injuries or traumatic brain injury include the following:
3. Loss of memory
4. Impaired hearing
5. Impaired vision
6. Loss of or impaired concentration
7. Impaired verbal and/or manual communication
8. Impaired manual dexterity
10. Impaired mathematical ability
11. Impaired executive functioning (abstract thinking, planning, organization, and problem solving)
12. Ability to sustain concentration
13. Motor function
14. Language difficulties
The above list is an example of some of the signs of traumatic brain injury and closed head injury and is not intended to be a complete listing of all the signs.
A mild closed head injury is an injury invisible to the jury which creates the illusion of no injury. Representing someone with a mild closed head injury places you in the position of asking the jurors not to believe their eyes. Their eyes tell them your mild closed head injured client is not brain injured. The person does not look or act or talk like someone who matches the image most individuals including jurors conjure up when they hear the words “brain injured.”
When neither the appearance nor the behavior matches our expectation, we reject it. The defense lawyer will do everything possible to validate the jurors’ natural anti-belief tendency and encourage their suspicion of what they cannot see. Overcoming this stereotypical image is a challenge.
Demonstrative evidence helps align appearances with reality and overcome the appearance of no injury. But because the effect of mild closed head injury is subtle, although very real, it does lend itself very well to the traditional “day-in-the-life” video.
To make visible the invisible mild closed head injury, you must use actual and demonstrative evidence. You must master the realities and the appearances. Most individuals have some frame of reference to fairly accurately visualize certain physical injuries but visualizing the mild closed head injury is more difficult. In my experience, focus groups seem reluctant to accept mild closed head injury when presented without first presenting the visible physical trauma injuries. Once you present the visible physical trauma injuries, focus groups appear more accepting of the possibility your client sustained additional internal injuries which they cannot see, such as a closed head injury.
Practitioners all have their “magic process” for helping the jury visualize the invisible mild closed head injury. I think the following nine steps, combining actual and demonstrative evidence, are helpful:
1. First, describe life activities before the trauma (pre-injury life).
2. Second, describe the collision (collision impact).
3. Third, show how the collision caused injuries (collision mechanics).
4. Fourth, describe how the body movement caused the particular injury (mechanics of injury).
5. Fifth, present the injuries from the trauma (trauma injuries).
6. Sixth, set forth in detail the trauma treatment and surgeries (trauma treatment).
7. Seventh, present the neurological and neuropsychological testing results (test results).
8. Eighth, demonstrate the residual impairments from physical and closed head injuries (permanent impairments).
9. Ninth, illustrate the impact on life after the trauma (post-trauma life).
1. Pre-injury life
Get all pre-injury photographs, audio and video recordings, news clippings, awards, plaques, trophies, ribbons and certificates, academic performance reports, documentation of civic, community and religious involvement, employment performance evaluations, client-prepared poems, artwork, letters and greeting cards prior to the date of trauma.
This next point is very important. Leave your office and visit your client’s home. This is where you will find the mementos the client cherishes but considers too petty to bring to your office, such as the snapshot of him covered in mud, the gag certificate his buddies gave him for the small fish he caught, or the plastic microphone award he won singing at Karaoke night. These mementos will likely form the basis of your pre-trauma lay witness, the “I remember when. . .” testimony.
Look for action images that show your client engaged in activity. Select those images that best show the activities and moments which gave your client’s life full meaning. Combine these images with a life activity calendar illustrating your client enjoyed a lifestyle full of unrestricted possibilities before the trauma.
2. Collision impact
Show the violence of the impact. The best way to do this is with photographs taken at the scene of the wreck. If this is not available, or to supplement the wreck scene photographs, photograph and video the vehicles at the storage or salvage yard.
Oftentimes these photographs speak for themselves and graphically tell the extent and force of the collision impact.
Better, yet, is an accident reconstructionist’s photographs depicting the extent and force of impact by measuring the amount by which the offending vehicle violated your client’s passenger compartment. For example, with these types of exact measurements in a roof crush case, you can photograph your client sitting in the same make and model of an undamaged vehicle, then superimpose the crushed roof to graphically illustrate how far down the roof crushed onto your client’s head.
3. Collision mechanics
Show how the crash happened. Even when liability is admitted, you must still convince the jury that the collision caused the injury. Working with your accident
reconstructionist and biomechanical engineer, create an animation or graphic to illustrate the mechanics of the collision.
Visually place the jury at the scene of the crash. Illustrate how the vehicles crashed together, the violence of the impact, the momentum of the vehicles, the crushing of the metal, the smashing of the passenger’s compartment, and the displacement of the interior of the passenger area.
4. Mechanics of injury
Show how your client sustained injuries. Continuing to work with your biomechanical engineer, create an animation or graphic to illustrate how your client’s body moved within the crash showing the forces which combined to produce trauma.
Have your neurologist determine the type of closed head injury your client most likely sustained. Then use animations to illustrate the mechanics of a closed head injury and show axonal shearing to educate the jury. There are some reusable video animations available illustrating the mechanics of a closed head injury which can be customized to your particular case.
5. Trauma injuries
Help the jurors visualize your client’s injuries. In demonstrating trauma injuries, think details. Comb every single page of medical records, especially the records of paramedics at the scene, the hospital admitting notes, the nurses’ notes and trauma team notes for all notations of observed injuries. For example, look for any notation of the following:
6. Trauma treatment
Describe the treatment and procedures and surgeries your client underwent. Show the number of days in the hospital and the days of physical therapy. Show devices worn/used by your client.
7. Test results
You must show the jury every test with a positive finding – anything that shows any type of closed head injury. This can include scarring in the brain, significant findings on an occupational evaluation, and of course, the findings of the neuropsychological testing.
8. Permanent impairments
Present to the jury all the physical limitations and impairments of your client. This includes physical limitations, neurological deficits, impairment rating, and psychological impairments.
9. Post-trauma life
This is the prime place to use lay witnesses – show the difference between the pre-trauma life and how it is now. Show the activity before, and the lack of activity now. Demonstrate the before and after versions of athletics, work, personal life, interaction with friends, family, children. Use photos and mementos and recollections of friends.