“No objective evidence of injury.”
The defense argument that there is “no objective evidence of injury” is so predictable in every brain injury case, it is a tactic I try to attack from all angles.
Imaging studies are not our only objective findings in medicine. We also accept the “footprint of pathology” signs as objective. When a person cannot see, even if we cannot pinpoint the cause of the blindness, this “footprint of pathology” tells us that there is damage. This is objective evidence. When a person cannot hear, likewise this “footprint of pathology” tells us that there is injury. When a neurological exam shows focal neurological deficits, this is a “footprint of pathology”.
Neuropsychological testing is essentially a “footprint of pathology” and as such is objective evidence of injury. Neuropsychological testing is designed to determine the brains current capacities. Then by comparing the pattern of these results, with the patients pre-morbid capabilities, and correlating these results with the nature of the trauma suffered by the patient, neuropsychologists can establish or confirm a diagnosis of brain injury.
There are other “footprints of pathology” we can use to further diffuse the no objective evidence of injury defense misdirection. If you can show some objective evidence that the brain or head was injured, the jury is far more likely to reject and hopefully reject with a vengeance, the malingering defense.
My first suggestion is to fully work up the brain stem/cranial nerve issues in a case. I believe that an abnormal Frenzel Goggle, ENG, rotary chair or posture platform test by a neurootologist, would be a terribly difficult finding for a defense attorney to attack. See http://vestibular-disorders.com for a discussion of traumatically caused balance, vertigo and dizziness problems.
Likewise, an injury to the brainstem and its cranial nerve connectors, can also result in damage to the autonomic nervous system, the part of the body that controls breathing, heart rate, blood pressure. One such posttraumatic injury involves an inability to regulate blood pressure, when the injured person is standing. This condition, postural orthostatic tachycardia syndrome will have very pronounced “footprints of pathology” including rapid increases in heart rate (tachycardia) when standing, overwhelming fatigue and vertigo.
When I handled primarily whiplash cases, I learned about another “footprint of pathology”, interestingly, a footprint of pain: an increase in blood pressure with pain. The nurse who taught me this one, told me to look at blood pressure readings in the emergency room, they often are very indicative of trauma.
I believe that these various pieces of objective evidence can provide us with a triangulation of pathology that will make the malingering defense ineffective.
Ultimately, it is a change in how the brain functions, that is important. An injury to the brain, without a change in function, may be trivial. But when the way in which the brain functions is changed, their will be a changed person. Those changes may be subtle, but when they result in disability, result in the breakdown of relationships, result in the loss of enjoyment of life and the result in depression, anger and sorrow, these are footprints of pathology that more clearly triangulate BRAIN DAMAGE, than the brightest clearer MRI or even the surgeons view of an intracranial hemorrhage.
How Doctors Don’t Think About Brain Damage
Every day, I encounter another example, either in the calls we get from our websites, or in the news media, or some where else, as to how Doctors don’t ever consider the potential for brain damage in the differential diagnosis. While it isn’t a real world example, this one is kind of fun to make fun of.
On one of the most popular TV’s shows, Grey’s Anatomy, there is a classic scene between Meredith Grey and Christina where Meredith can’t sleep and Christina is trying to find the right diagnosis. They are apparently studying from what has to be the DSM-IV (Diagnostic Statistical Manual – IV – the psychiatrict bible), discussing her depression and difficulty building an adult relationship with Dereck Shepard. They discuss her issues and Christina looks at the bullet points in the DSM-IV and comes up with “abandonment issues.” OK, makes sense, the plot of the TV show sort of revolves around her psychological issues.
But wait: Didn’t Meredith suffer severe brain damage? Wasn’t she the girl who drowned, was actually dead? Wasn’t that her who they fought and fought and fought to bring her back from the dead? Hmmm.. It is only a TV show, but wouldn’t all that time where blood was not circulating thru her brain have caused some pretty severe brain damage. Miracles are miracles, but still, if she had emotional issues, or problems sleeping a few months later, wouldn’t these brilliant doctors at least consider the possibility of “BRAIN DAMAGE.”
Christina, you could look it up in a lot of other books: emotional detachment, sleep problems, these are also symptoms of brain damage. Click here for a synopsis of this TV episode.
There is an excellent book out recently entitled “How Doctor’s Think” by Dr. Jerome Groopman. It details why medical misdiagnosis is such a common problem and is important reading for everyone. An excellent podcast interviewing Dr. Groopman is available here: http://www.onpointradio.org/shows/2007/11/20071113_a_main.asp
I think the corollary to that book should be: “How Doctors Don’t Think About Brain Damage.” Why is it, that the potential for brain damage is rarely considered in the differential diagnosis? Even Dr. House makes this mistake. (A comment made facetiously about another medical show on TV).
Another example from today’s news: In the inquest into the death of Princess Diana, Trevor Rees, who was severely injured in the crash on Aug. 31, 1997, also denied allegations by Fayed’s father that he had participated in a cover-up of the truth.
“I have no memory of — after leaving the back of the hotel. That’s my last true memory,” Rees said. Of course it is. Rees suffered a severe brain injury in this accident. But even dumber than this continued effort to get the “truth” out of the only survivor of the crash, is the statement from Psychiatrist Maurice Lispedge in court that the chances of Rees recovering his memory were “slight”. They are not slight. They are non-existent. His brain did not save any of those memories. Any so-called memory he could possibly have, would not be a real memory. This is a classic case of retrograde amnesia. How can Western society be so ignorant as to expect him to remember anything material? http://ap.google.com/article/ALeqM5gt4lktu_9eR8cCLZsfdDdwu3h3cwD8UBJ0100
How do we get doctors to think about Brain Damage? Hit them over the head with it, again and again. Maybe in the spirit of the classic Hollywood head injury myth, the repeated blow to the head will trigger the memory of that little tiny part of medical school where they were supposed to learn about brain damage, brain injury, neurobehavioral deficits and the interplay between organic brain damage and emotions.
On one of the most popular TV’s shows, Grey’s Anatomy, there is a classic scene between Meredith Grey and Christina where Meredith can’t sleep and Christina is trying to find the right diagnosis. They are apparently studying from what has to be the DSM-IV (Diagnostic Statistical Manual – IV – the psychiatrict bible), discussing her depression and difficulty building an adult relationship with Dereck Shepard. They discuss her issues and Christina looks at the bullet points in the DSM-IV and comes up with “abandonment issues.” OK, makes sense, the plot of the TV show sort of revolves around her psychological issues.
But wait: Didn’t Meredith suffer severe brain damage? Wasn’t she the girl who drowned, was actually dead? Wasn’t that her who they fought and fought and fought to bring her back from the dead? Hmmm.. It is only a TV show, but wouldn’t all that time where blood was not circulating thru her brain have caused some pretty severe brain damage. Miracles are miracles, but still, if she had emotional issues, or problems sleeping a few months later, wouldn’t these brilliant doctors at least consider the possibility of “BRAIN DAMAGE.”
Christina, you could look it up in a lot of other books: emotional detachment, sleep problems, these are also symptoms of brain damage. Click here for a synopsis of this TV episode.
There is an excellent book out recently entitled “How Doctor’s Think” by Dr. Jerome Groopman. It details why medical misdiagnosis is such a common problem and is important reading for everyone. An excellent podcast interviewing Dr. Groopman is available here: http://www.onpointradio.org/shows/2007/11/20071113_a_main.asp
I think the corollary to that book should be: “How Doctors Don’t Think About Brain Damage.” Why is it, that the potential for brain damage is rarely considered in the differential diagnosis? Even Dr. House makes this mistake. (A comment made facetiously about another medical show on TV).
Another example from today’s news: In the inquest into the death of Princess Diana, Trevor Rees, who was severely injured in the crash on Aug. 31, 1997, also denied allegations by Fayed’s father that he had participated in a cover-up of the truth.
“I have no memory of — after leaving the back of the hotel. That’s my last true memory,” Rees said. Of course it is. Rees suffered a severe brain injury in this accident. But even dumber than this continued effort to get the “truth” out of the only survivor of the crash, is the statement from Psychiatrist Maurice Lispedge in court that the chances of Rees recovering his memory were “slight”. They are not slight. They are non-existent. His brain did not save any of those memories. Any so-called memory he could possibly have, would not be a real memory. This is a classic case of retrograde amnesia. How can Western society be so ignorant as to expect him to remember anything material? http://ap.google.com/article/ALeqM5gt4lktu_9eR8cCLZsfdDdwu3h3cwD8UBJ0100
How do we get doctors to think about Brain Damage? Hit them over the head with it, again and again. Maybe in the spirit of the classic Hollywood head injury myth, the repeated blow to the head will trigger the memory of that little tiny part of medical school where they were supposed to learn about brain damage, brain injury, neurobehavioral deficits and the interplay between organic brain damage and emotions.
Stroke/Accident Case
I just got an interesting email from Jayne:
Now doctors say a bystander can recognize a stroke by asking three
simple questions:
S * Ask the individual to SMILE.
T * Ask the person to TALK and SPEAK A SIMPLE SENTENCE
R * Ask him or her to RAISE BOTH ARMS.
If he or she has trouble with ANY ONE of these tasks, call 911
immediately and describe the symptoms to the dispatcher.
New Sign of a Stroke ——– Stick out Your Tongue
NOTE: Another ‘sign’ of a stroke is this: Ask the person to ‘stick’
out his tongue.. If the tongue is ‘crooked’, if it goes to one side or the
other, that is also an indication of a stroke.
Why is this relevant to us, a personal injury law firm that represents people with brain damage?
Because stroke is an issue secondary to what happens in accident.
The most common post accident incident of stroke is what is called an artery dissection. In an artery dissection, one of the arteries that brings blood to the brain is injured in the actual accident. The injury to this artery causes a small tear (the dissection) and a little scab will form on this tear, and later break off and flow upwards to the brain. This now, floating in the blood stream scab, will later get caught in an artery higher up in the brain and cause a blood clot. This is what causes the the stroke. This actually does occur in nearly 1% of cases where there is a direct blow to the neck, but can also occur with rapid movement of the head.
Several years ago, there was a young girl who died after being hit in the head by a puck at a NHL game in Columbus, OH. The cause of death was not the blow to the head, but an artery dissection. http://sportsillustrated.cnn.com/hockey/news/2002/03/19/puck_death_ap/
The other common situation where stroke occurs after a motor vehicle wreck is from chiropractic manipulation. The force of chiropractic manipulation, especially in someone who has already weakened or sprained his or her neck in the accident, can cause the same type tearing in an artery. Since we see so many people with vertigo and dizziness, we commonly see people who have profound vertigo as a result of a tear to the vertebral artery. http://en.wikipedia.org/wiki/Vertebral_artery_dissection Carotid artery dissections are also common. http://en.wikipedia.org/wiki/Carotid_artery_dissection
We are in development of a web page on this topic and hope to have it online in the next couple of months.
Now doctors say a bystander can recognize a stroke by asking three
simple questions:
S * Ask the individual to SMILE.
T * Ask the person to TALK and SPEAK A SIMPLE SENTENCE
R * Ask him or her to RAISE BOTH ARMS.
If he or she has trouble with ANY ONE of these tasks, call 911
immediately and describe the symptoms to the dispatcher.
New Sign of a Stroke ——– Stick out Your Tongue
NOTE: Another ‘sign’ of a stroke is this: Ask the person to ‘stick’
out his tongue.. If the tongue is ‘crooked’, if it goes to one side or the
other, that is also an indication of a stroke.
Why is this relevant to us, a personal injury law firm that represents people with brain damage?
Because stroke is an issue secondary to what happens in accident.
The most common post accident incident of stroke is what is called an artery dissection. In an artery dissection, one of the arteries that brings blood to the brain is injured in the actual accident. The injury to this artery causes a small tear (the dissection) and a little scab will form on this tear, and later break off and flow upwards to the brain. This now, floating in the blood stream scab, will later get caught in an artery higher up in the brain and cause a blood clot. This is what causes the the stroke. This actually does occur in nearly 1% of cases where there is a direct blow to the neck, but can also occur with rapid movement of the head.
Several years ago, there was a young girl who died after being hit in the head by a puck at a NHL game in Columbus, OH. The cause of death was not the blow to the head, but an artery dissection. http://sportsillustrated.cnn.com/hockey/news/2002/03/19/puck_death_ap/
The other common situation where stroke occurs after a motor vehicle wreck is from chiropractic manipulation. The force of chiropractic manipulation, especially in someone who has already weakened or sprained his or her neck in the accident, can cause the same type tearing in an artery. Since we see so many people with vertigo and dizziness, we commonly see people who have profound vertigo as a result of a tear to the vertebral artery. http://en.wikipedia.org/wiki/Vertebral_artery_dissection Carotid artery dissections are also common. http://en.wikipedia.org/wiki/Carotid_artery_dissection
We are in development of a web page on this topic and hope to have it online in the next couple of months.
Brain Damage or Is it Mild Head Injury or what?
I have dealt with the semantics of what to call someone who suffered brain damage after an accident or injury as long as I have been represented such individuals. When I first started, there was an organization called the NHIF, National Head Injury Foundation. Then it was deemed inaccurate, or politically correct or something, and it became “required” to use the term brain injury, instead of head injury. The NHIF became the BIA, Brain Injury Association.
Then there was the controversy over to what to call someone with what was deemed to be “mild” head injury. I struggled with that label for a while and then coined the term “subtle brain injury”© at the time I first authored http://subtlebraininjury.com
I have lost more battles than I have won in the Courtroom, because jurors don’t get it, that brain injury, mild, subtle, whatever you call it is “brain damage.” I know that survivors of brain injuries don’t like the use of the word “damage” to describe what they have experienced. But I am sorry, I have to retrain myself to use the word “damage” because unless I persuade jurors that this stuff is as serious as what they think of as “brain damage”, I am not going to win for those who really need me to do so.
Why is brain damage sound more serious than brain injury? I am not sure. I could give some examples. How many people know that if your brain is deprived of oxygen for “five minutes” you can suffer permanent brain damage? Most people who pay attention I would think. (Personally, I have always subscribed to the theory that all threshold’s for damage are too high, that probably three to four minutes can cause more subtle damage.) In contrast, when people suffer an injury, they think it is something that will heal.
Don’t get me wrong, I truly hope that all of you who have suffered a brain injury, have the maximum recovery. Most of the impact of our web advocacy goes to people who will never need or call a lawyer. I have been committed to this goal since first going online with http://tbilaw.com and http://waiting.com in 1996 and 1997. Education and advocacy have been at the cornerstone of what the Brain Injury Law Office has done, and I believe largely due the assistance of Becca and Jayne, we have made a real difference.
But I have never been particularly politically correct, and my most important goal is to convince outsiders that my clients, who by definition are not people who had an injury, but are people with permanent damage, have brain damage. If I don’t train myself to use those words more often, I may lose the semantic battle where it counts the most: the Courtroom.
Then there was the controversy over to what to call someone with what was deemed to be “mild” head injury. I struggled with that label for a while and then coined the term “subtle brain injury”© at the time I first authored http://subtlebraininjury.com
I have lost more battles than I have won in the Courtroom, because jurors don’t get it, that brain injury, mild, subtle, whatever you call it is “brain damage.” I know that survivors of brain injuries don’t like the use of the word “damage” to describe what they have experienced. But I am sorry, I have to retrain myself to use the word “damage” because unless I persuade jurors that this stuff is as serious as what they think of as “brain damage”, I am not going to win for those who really need me to do so.
Why is brain damage sound more serious than brain injury? I am not sure. I could give some examples. How many people know that if your brain is deprived of oxygen for “five minutes” you can suffer permanent brain damage? Most people who pay attention I would think. (Personally, I have always subscribed to the theory that all threshold’s for damage are too high, that probably three to four minutes can cause more subtle damage.) In contrast, when people suffer an injury, they think it is something that will heal.
Don’t get me wrong, I truly hope that all of you who have suffered a brain injury, have the maximum recovery. Most of the impact of our web advocacy goes to people who will never need or call a lawyer. I have been committed to this goal since first going online with http://tbilaw.com and http://waiting.com in 1996 and 1997. Education and advocacy have been at the cornerstone of what the Brain Injury Law Office has done, and I believe largely due the assistance of Becca and Jayne, we have made a real difference.
But I have never been particularly politically correct, and my most important goal is to convince outsiders that my clients, who by definition are not people who had an injury, but are people with permanent damage, have brain damage. If I don’t train myself to use those words more often, I may lose the semantic battle where it counts the most: the Courtroom.
Lawyer: How to Interact with your Brain Damaged Client
Editors Note: Two days ago, my paralegal Jayne wrote a Blog on how potential clients should interact with a law firm when they are trying to get them to take their case. I then asked a former client to write the counterpoint to Jayne’s Blog: how she thought a law firm should interact with a brain damaged client.
It is below. I do want to warn both clients and lawyers who might read this: these are perfect world theories. In reality, both sides will do their best, but the nature of working with brain damaged clients, in a busy legal environment is not perfect. I have learned from both of these blogs. But I will still be me, and we want you to still be you. If you have a case, call us, prepared or not. If you have a crisis, and we are not as patient at that moment as you need us to be, it isn’t because we don’t care.
Attorney Gordon Johnson__http://gordonjohnson.com__
“>g@gordonjohnson.com
Here it is:
Client suggestions to lawyers
1. Give the client and his/her family member, spouse, the person who is their primary support, an overview of the legal process from start to finish.
When you use a legal term please explain what this means, what happens during this phase, what kinds of things does the client need to get together, approximately when these phases will occur, etc. The client and his/her support person will be better able to handle these phases if they know what will be coming up and what will be involved during these different phases.
2. Explore early on issues regarding having a guardian appointed for the person with the brain injury.
It is highly likely that the client with a brain injury has poor judgment in many areas of his/her life and could really benefit from having a guardian. This guardian may also serve a very important function of being the one “safe” person to whom the client can speak with in confidence without fear of the defense attorneys bringing up these confidences during depositions. It is EXTREMELY important for the client to have someone other than only the attorney to be able to discuss everything with.
3. Don’t blame the survivor.
You must realize that your client has a brain injury as the result of someone else’s fault. The very nature of being brain injured means that your client will be very frustrating to work with. During these times of frustration, remain as calm as possible—any extra emotion will make the situation worse. Some clients will deal with this frustration by lashing out at you. It may be necessary to arrange another time to talk when the situation has calmed down, and/or to speak with the client’s spouse or guardian. Other clients may deal with frustration by becoming angry at themselves and may be suicidal. You may find it necessary to make sure your client has someone with them when talking about difficult issues.
4. Develop a list of important information your client intake person can email or send to a potential client; make an appointment for the intake call for a time in which the intake person has time to listen and the client (or client’s representative) can share important intake information.
Many people with brain injuries have frontal lobe damage which effects their ability to organize their thoughts. It will probably save both the intake person and the client a lot of heartache and frustration if you can let them know what kind of information you need. Tell the client not to worry if they don’t have everything, just try to gather as much information as possible. Realize that the potential client may not have the ability to do what you ask—this is a double-edge sword you will need to figure out how to handle. On the one hand, listening to the person may give you valuable information about the kinds of deficits s/he has as a result of the brain injury. On the other hand, it may be more helpful to have another person communicate the pertinent information
5. Explain to the client, or his/her family, the important information which will need to be collected or communicated to the lawyer’s office.
You may find it helpful to provide your client with some kind of tools or system for keeping track of important information. For example, a calendar to record appointments with doctors, when s/he had to go to the hospital, etc. A list of medical doctors, hospitals, therapists seen both before the trauma and after the injury with spaces for address, phone number, fax number, dates seen.
6. Sometimes the attorney is the client’s best and/or only advocate in keeping on top of the doctors to properly diagnose the client and clearly explain what is wrong and why.
Brain trauma or damage is a very difficult injury to understand why and how it manifests the way it does in each individual. It will be critical to the client’s case for him/her to have the answers to these questions, since this will come up. Oftentimes, doctors ignore or put off their patients’ request for answers, but may respond better to the lawyer. It is better to get these answers as soon as possible, than waiting a couple of weeks before the trial.
7. Recognize and acknowledge your own biases.
Even though you know your client has a brain injury, you are human like everyone else and may have certain biases which cause you to have inappropriate expectations of your client. Although your client may look like a healthy adult, certain parts of his/her brain may function on the level of a child. He or she may communicate very intelligently in writing, but have very poor judgment or temper tantrums in emotional situations. The challenge becomes how to teach and sometimes set limits with your adult client in a way that is still respectful. Talking about this in an open, respectful way can also help your client understand some of the potential challenges with his/her case. Example: “You communicate so well in writing, the defense will use this against you.” This doesn’t mean the client should lie about their capabilities, it just means that it may be harder to educate others regarding the client’s brain injury.
8. Understand that your client has a brain injury and will not be able to do some of the things you need a client to do. This means that YOU (the lawyer’s office) will need to figure out strategies for the client regarding how to best work with your office.
Example: Many people with brain injuries have difficulty with memory. Something may occur to your client that they think might be important for you to know and they will call your office as soon as this thought pops into their head. This information really might be important, but your office staff does not have the time to take the call or listen carefully. If you ask the client to wait or tell him/her that you will call back later, they will probably forget what they called you about in the first place.
Solution: Develop some kind of consistent, workable strategy. You will also need to assess who is able to assist in this solution. Is it something the client is capable of doing? If not, is there someone else (i.e., family member, therapist, friend, neighbor) who can assist your client?
For example, a consistent response might be:
- Helen, I’m in the middle of something important right now and only have a few minutes. (Communicate your needs)
- Your call is also important to me. (Affirm that your client is also important)
- I need for you to do the following: (Redirect your client for a win-win solution by telling the client what s/he can do right now to help you and him/herself.)4
- Write down or type what you want to tell me. (This is extremely important because your client will probably forget t he reason for calling you once s/he hangs up. Also, people with brain injuries often have a tendency to obsess about things until they are addressed. Telling your client how s/he can channel this energy positively will benefit both of you.)
- If this includes several things, number them in order of what is most important. (Clients with brain injuries might have logorrhea, a tendency to talk incessantly. Asking them to prioritize will help them work on this problem and will also allow you to set limits on what you have time for when you talk with them again—Helen, tell me the 2 most important things on your list.)
- Can you write these things down and prioritize them? (Never automatically assume your client can do certain things; check first.)
- Who can help you with this? (If your client cannot do what you ask or has difficulty with it, ask who can help. This will give you important information about their abilities and challenges and also about their support systems. )
- Where are you going to put these when you are done? (Help the client develop a routine. For example, they write down their legal communications on bright orange paper and post it on the refrigerator, or in a brightly colored notebook marked Legal Matters with divisions and forms for different areas of importance to their case. People with brain injuries have a tendency to lose things; brightly colored notebooks or paper may be helpful in quickly locating lost or misplaced items.)
- Helen, I will call you back either later this afternoon or tomorrow morning. Call me back if I don’t call by noon tomorrow. (Give you client a specific time frame when you might get back to them. Saying “It will take me a while to get back to you,” can be interpreted as anything from a couple of hours to a couple of days. Be as specific as possible. Give you client permission to help act as a reminder to you.)
- What’s the first thing you are going to do when we hang up? (Make sure your client remembers and understands the game plan. If s/he doesn’t, you may need to have him write down the steps of what to do. If you respond to your client in a consistent manner, this will work well and more quickly for both of you in the long-run.)
How to Present Your Brain Injury Case to a Brain Injury Lawyer
EDITORS NOTE: I have one of the great paralegals in the country, as my primary staff person and intake person: Jayne. Jayne knows more about brain injury than most of the neurologists I depose, and could find an easier, less time consuming job anytime she wanted, did she not have such a commitment to brain injury survivors. Ask any client of mine (or even any defense attorney) and they will tell you how indispensable Jayne has been to their case. She is a caring, smart, and organized individual, who will work every possible minute to preserve your right to justice.
I asked Jayne to write a blog on how to help people know what to say to a lawyer when they call with a personal injury case. Here is what she said:
Jayne on What to Say When You Call:
As a paralegal to a busy trial lawyer, I speak to many people on the phone about accidents or medical situations. All of the people that I talk to are potential clients looking for a lawyer to represent them.
Here are what I consider to be the 10 best ways to present your case to a law firm:
1. Ask for the person who handles new case intake. Don’t insist that you speak immediately to a lawyer. The best lawyers have competent personnel working for them who are trained* to handle what is commonly referred to a case intake. If you only want to speak to “the lawyer” ….you might just end up not speaking with anyone.
2. Ask if this is a good time for the person to listen to you. My job involves doing many different tasks during the day. Sometimes just being able to speak to you at a time when I am available to listen without a distraction can make a difference in the presentation of your case.
3. Speak clearly. This seems so basic, yet rarely happens. People are so anxious to tell their “story” that they begin speaking rapidly and using incomplete sentences. Speak slowly and clearly. I am usually typing notes to myself as I listen, so speaking clearly will help both of us.
4. Start at the beginning of your story. Please don’t skip all over the place when you are trying to explain. Think about what you want to say prior to calling a law firm. I can’t tell you how many times I hear “I just don’t know where to start or what to tell you.” Well… you called me for my assistance, so please give some thought to what you wish to say before you dial.
5. Tell me just the facts. Yes, at some point I will need to know every little nuance and detail of what happened, but not during the initial phone call. Give me the basic facts in chronological order. If I do try to cut you short, understand that it is my job to present your potential case to the attorney in a concise fashion.
6. Don’t whine. Tell me your story without sounding like a complainer. We understand what has happened to you has been terrible. . I listen to many sad stories. I feel empathy for each person who calls our office or I would not be doing what I do. Unfortunately, when you go on and on, it is difficult for me or anyone else to listen for any length of time.
7. Explain why your case has merit. You are looking for an attorney because you believe you need an attorney to represent you in your plea for justice. Explain your perspective as to the reasons why you feel you need to commence a lawsuit against a certain party.
8. Don’t complain endlessly about your past attorney. Many of the calls I handle involve someone who is unhappy with their past attorney. I am listening carefully as you describe your difficulties with your prior attorney. I am asking myself if the problem sounds like it was the attorney or if it was you. No law firm wants to take on a problem client. Try to respectfully point out the differences between your past attorney and yourself.
9. Don’t leave important facts until the end. Nothing is more frustrating than after I have spent a great deal of time listening and taking notes to hear someone say “and my case has already been settled.” If your case is settled or your trial begins tomorrow, those are important facts that we need to know right up front. This rule contradicts what I said above, about telling everything in chronological order.
10. Be proactive, persistant, and polite. I am a busy person trying to do the best job that I can getting you the representation you deserve. If you do not hear from our office within a few days of your initial call, please call again and ask if we have had a chance to review your situation. (See Footnote from lawyer below).
Your proper presentation of your case can make a major difference in obtaining the best possible representation.
Jayne Zabrowski
jayne@tbilaw.com
800-992-9447
Editor’s Footnote: When Jayne is excusing us for not calling back timely enough, she is covering for me. Jayne never doesn’t get around to you. The source of that problem would be me, and I do apologize. I sometimes have a million things going and a crisis in a current case that I am consumed with. If Jayne thinks you have a case with merit, I always listen. It is just that sometimes I don’t turn on the ears for days. Remind Jayne if you haven’t heard, and she will make me listen the next time.
The problem with these rules is that we by definition represent those who have difficulty doing what these rules ask for. We will listen regardless. Jayne’s point is that when you are talking to some other law firm, that does not grasp that brain damaged clients have difficulty with executive functioning, these problems in organizing your story may be fatal to getting representation. If you have difficulty doing these things, it can increase your chance of getting representation get someone to help you do them. Even consider having someone who knows you and how you were changed by your injury, make the call for you.
A couple of additional points:
Where Did you Get Hurt. First thing I want to hear is where the injury occurred. How much I can help you myself, or who I can associate to help you, is very dependant on where the injury occurred.
Who Did Something Wrong. There is no personal injury case without wrongful conduct. Tell us why you think your injury was some else’s fault.
Thank you for your patience with us. We will do our best, to help you.
Within the next week, we will have a list of suggestions from a client as to what the lawyer could do better.
I asked Jayne to write a blog on how to help people know what to say to a lawyer when they call with a personal injury case. Here is what she said:
Jayne on What to Say When You Call:
As a paralegal to a busy trial lawyer, I speak to many people on the phone about accidents or medical situations. All of the people that I talk to are potential clients looking for a lawyer to represent them.
Here are what I consider to be the 10 best ways to present your case to a law firm:
1. Ask for the person who handles new case intake. Don’t insist that you speak immediately to a lawyer. The best lawyers have competent personnel working for them who are trained* to handle what is commonly referred to a case intake. If you only want to speak to “the lawyer” ….you might just end up not speaking with anyone.
2. Ask if this is a good time for the person to listen to you. My job involves doing many different tasks during the day. Sometimes just being able to speak to you at a time when I am available to listen without a distraction can make a difference in the presentation of your case.
3. Speak clearly. This seems so basic, yet rarely happens. People are so anxious to tell their “story” that they begin speaking rapidly and using incomplete sentences. Speak slowly and clearly. I am usually typing notes to myself as I listen, so speaking clearly will help both of us.
4. Start at the beginning of your story. Please don’t skip all over the place when you are trying to explain. Think about what you want to say prior to calling a law firm. I can’t tell you how many times I hear “I just don’t know where to start or what to tell you.” Well… you called me for my assistance, so please give some thought to what you wish to say before you dial.
5. Tell me just the facts. Yes, at some point I will need to know every little nuance and detail of what happened, but not during the initial phone call. Give me the basic facts in chronological order. If I do try to cut you short, understand that it is my job to present your potential case to the attorney in a concise fashion.
6. Don’t whine. Tell me your story without sounding like a complainer. We understand what has happened to you has been terrible. . I listen to many sad stories. I feel empathy for each person who calls our office or I would not be doing what I do. Unfortunately, when you go on and on, it is difficult for me or anyone else to listen for any length of time.
7. Explain why your case has merit. You are looking for an attorney because you believe you need an attorney to represent you in your plea for justice. Explain your perspective as to the reasons why you feel you need to commence a lawsuit against a certain party.
8. Don’t complain endlessly about your past attorney. Many of the calls I handle involve someone who is unhappy with their past attorney. I am listening carefully as you describe your difficulties with your prior attorney. I am asking myself if the problem sounds like it was the attorney or if it was you. No law firm wants to take on a problem client. Try to respectfully point out the differences between your past attorney and yourself.
9. Don’t leave important facts until the end. Nothing is more frustrating than after I have spent a great deal of time listening and taking notes to hear someone say “and my case has already been settled.” If your case is settled or your trial begins tomorrow, those are important facts that we need to know right up front. This rule contradicts what I said above, about telling everything in chronological order.
10. Be proactive, persistant, and polite. I am a busy person trying to do the best job that I can getting you the representation you deserve. If you do not hear from our office within a few days of your initial call, please call again and ask if we have had a chance to review your situation. (See Footnote from lawyer below).
Your proper presentation of your case can make a major difference in obtaining the best possible representation.
Jayne Zabrowski
jayne@tbilaw.com
800-992-9447
Editor’s Footnote: When Jayne is excusing us for not calling back timely enough, she is covering for me. Jayne never doesn’t get around to you. The source of that problem would be me, and I do apologize. I sometimes have a million things going and a crisis in a current case that I am consumed with. If Jayne thinks you have a case with merit, I always listen. It is just that sometimes I don’t turn on the ears for days. Remind Jayne if you haven’t heard, and she will make me listen the next time.
The problem with these rules is that we by definition represent those who have difficulty doing what these rules ask for. We will listen regardless. Jayne’s point is that when you are talking to some other law firm, that does not grasp that brain damaged clients have difficulty with executive functioning, these problems in organizing your story may be fatal to getting representation. If you have difficulty doing these things, it can increase your chance of getting representation get someone to help you do them. Even consider having someone who knows you and how you were changed by your injury, make the call for you.
A couple of additional points:
Where Did you Get Hurt. First thing I want to hear is where the injury occurred. How much I can help you myself, or who I can associate to help you, is very dependant on where the injury occurred.
Who Did Something Wrong. There is no personal injury case without wrongful conduct. Tell us why you think your injury was some else’s fault.
Thank you for your patience with us. We will do our best, to help you.
Within the next week, we will have a list of suggestions from a client as to what the lawyer could do better.
Korean Boxer Death – Coma Wasn’t Immediate
The death of Korean boxer Choi Yo-sam eight days after he fell into a coma, after winning his last fight is significant, not just because of the barbarity of allowing the sport of Boxing to exist. It is also significant because it is the ultimate demonstration that a person does not have to suffer an immediate loss of consciousness to suffer a brain injury.
Choi Yo Sam won his title fight, but injuries suffered in the 12th round, lead to him passing out shortly after the fight and he never emerged from his coma, before being declared dead eight days later. http://english.chosun.com/w21data/html/news/200801/200801030015.html
Boxing Should be Banned. I remember attending a brain injury seminar almost a decade ago, at the Detroit Athletic Club. A renowned researcher in the field of brain injury, James Kelly, M.D., was one of the speakers. It was during the same time period that Dr. Kelly’s work with sport concussions and second impact syndrome was beginning to affect the protocols for concussion in sport. In addition to hosting our event, the Detroit Athletic Club was also sponsoring a Golden Gloves Boxing Event on the same evening.
Dr. Kelly had joined us for a dinner, yet could barely concentrate on conversation, he was so upset that a Brain Injury Association function was being held in a facility, that was sponsoring a boxing match, on the very same evening. His point: any sport which has as its goal causing a brain injury to your opponent, should be illegal.
How can a society that can marshal such outrage over dog fighting, sanction and glorify a sport that kills human beings. The death of a boxer is not an accident. It is the ultimate goal of the sport, to cause the most significant head injury possible to the opponent. The entire science and training of the sport is directed at that very goal. Punch the opponent in the head, causing the greatest immediate injury. That immediate injury is brain damage, brain damage that can kill.
The more relevant issue to the type of brain damage I see in my practice is that loss of consciousness does not have to be immediate, for significant brain damage to occur after a head injury.
Brain injury is a process, not an event. Countless defense medical examiners will dismiss the potential for brain damage in a person, because that person will not have suffered an immediate loss of consciousness. Likewise, they will dismiss the potential for a brain injury because the injured person continues to function after the blow. I ask this same question of almost every defense doctor I depose:
Q. It’s a fact, is it not, that you can have a brain injury without an immediate loss of consciousness?
More than half of the time, I get an answer back, from professors of medicine or neuropsychology, that is roughly equivalent to this answer from a professor of neurology, at Case Western Reserve Hospital in Cleveland:
A. Okay. I don’t know. It’s unlikely.
In almost every case, these defense doctor’s will conclude that my client is not disabled because he or she did not suffer an immediate loss of consciousness. It is only after I remind them of situations like this Korean Boxer’s death, do they acknowledge that the fundamental basis of their conclusions is flawed. An immediate loss of consciousness is not a prerequisite for a brain injury.
Admittedly, Choi Yo-sam resulting coma and death, is not the typical post concussion progression. He lapsed into coma within minutes of the event, and his death was in all likelihood the result of a serious increase in intracranial pressure. The evolving pathology that most individuals with subtle brain injury or post concussion syndrome have, is far less extreme. Yet less extreme, does not mean that pathology doesn’t exist. Any brain damage, can be significant, depending on where that pathology is and to whom. There is significant disability potential in less severe injuries, especially if the injury is suffered to someone over the age of 35. Looking only to the minute surrounding the event, is not sufficient analysis to determine the extent of severity.
Choi Yo Sam won his title fight, but injuries suffered in the 12th round, lead to him passing out shortly after the fight and he never emerged from his coma, before being declared dead eight days later. http://english.chosun.com/w21data/html/news/200801/200801030015.html
Boxing Should be Banned. I remember attending a brain injury seminar almost a decade ago, at the Detroit Athletic Club. A renowned researcher in the field of brain injury, James Kelly, M.D., was one of the speakers. It was during the same time period that Dr. Kelly’s work with sport concussions and second impact syndrome was beginning to affect the protocols for concussion in sport. In addition to hosting our event, the Detroit Athletic Club was also sponsoring a Golden Gloves Boxing Event on the same evening.
Dr. Kelly had joined us for a dinner, yet could barely concentrate on conversation, he was so upset that a Brain Injury Association function was being held in a facility, that was sponsoring a boxing match, on the very same evening. His point: any sport which has as its goal causing a brain injury to your opponent, should be illegal.
How can a society that can marshal such outrage over dog fighting, sanction and glorify a sport that kills human beings. The death of a boxer is not an accident. It is the ultimate goal of the sport, to cause the most significant head injury possible to the opponent. The entire science and training of the sport is directed at that very goal. Punch the opponent in the head, causing the greatest immediate injury. That immediate injury is brain damage, brain damage that can kill.
The more relevant issue to the type of brain damage I see in my practice is that loss of consciousness does not have to be immediate, for significant brain damage to occur after a head injury.
Brain injury is a process, not an event. Countless defense medical examiners will dismiss the potential for brain damage in a person, because that person will not have suffered an immediate loss of consciousness. Likewise, they will dismiss the potential for a brain injury because the injured person continues to function after the blow. I ask this same question of almost every defense doctor I depose:
Q. It’s a fact, is it not, that you can have a brain injury without an immediate loss of consciousness?
More than half of the time, I get an answer back, from professors of medicine or neuropsychology, that is roughly equivalent to this answer from a professor of neurology, at Case Western Reserve Hospital in Cleveland:
A. Okay. I don’t know. It’s unlikely.
In almost every case, these defense doctor’s will conclude that my client is not disabled because he or she did not suffer an immediate loss of consciousness. It is only after I remind them of situations like this Korean Boxer’s death, do they acknowledge that the fundamental basis of their conclusions is flawed. An immediate loss of consciousness is not a prerequisite for a brain injury.
Admittedly, Choi Yo-sam resulting coma and death, is not the typical post concussion progression. He lapsed into coma within minutes of the event, and his death was in all likelihood the result of a serious increase in intracranial pressure. The evolving pathology that most individuals with subtle brain injury or post concussion syndrome have, is far less extreme. Yet less extreme, does not mean that pathology doesn’t exist. Any brain damage, can be significant, depending on where that pathology is and to whom. There is significant disability potential in less severe injuries, especially if the injury is suffered to someone over the age of 35. Looking only to the minute surrounding the event, is not sufficient analysis to determine the extent of severity.
About Our Brain Damage Practice
Thank you for visiting my Brain Damage Blog. I am an attorney who dedicates his entire practice to representing those with brain injury. I have been authoring web pages devoted to providing information about brain injury since 1996, including: http://tbilaw.com and its companion site:http://waiting.com
I am an attorney with nearly 30 years of experience. I am a member of the Wisconsin, Illinois and Michigan bars, and handle cases throughout the United States. I have offices in Chicago and Sheboygan, Wisconsin. I currently have additional cases in such places as Ohio, Iowa, Arkansas and Connecticut, and have close affiliations with lawyers in other places, particularly New York, California and Pennsylvania.
My advocacy is not limited to legal representation of the brain injured, but also includes a daily commitment to education and advocacy. Our authorship of waiting.com, The Coma Waiting Page, has brought information about coma to thousands of family members while they awaited someone to emerge from a coma.
I have long felt a mission to change the medical communities vision of concussion, and to that end, copyrighted the term “subtle brain injury” and its web page, http://subtlebraininjury.com in 1999. Currently, we are in development of a new advocacy mission, which I call Concussion Clinics, an effort to change the protocol for concussion care for average citizens to the daily monitoring that athletes get after head injury. See our You Tube videos on that issue at http://youtube.com/braininjuryattorney
I am a member of the Brain Injury Association of Wisconsin My service for the BIA-WI has included serving two terms on its board of directors and editing the association’s newsletter. I was also appoined by Wisconsin’s governor to the state sub-agency, the TBI-Advisory Board.
I am currently the Vice Chair of the Association of Trial Lawyers of America, Litigation Group for TBI.
I graduated from Northwestern University, BS-Journalism and am a 1979 graduate cum laude of the University of Wisconsin Law School.
I am an attorney with nearly 30 years of experience. I am a member of the Wisconsin, Illinois and Michigan bars, and handle cases throughout the United States. I have offices in Chicago and Sheboygan, Wisconsin. I currently have additional cases in such places as Ohio, Iowa, Arkansas and Connecticut, and have close affiliations with lawyers in other places, particularly New York, California and Pennsylvania.
My advocacy is not limited to legal representation of the brain injured, but also includes a daily commitment to education and advocacy. Our authorship of waiting.com, The Coma Waiting Page, has brought information about coma to thousands of family members while they awaited someone to emerge from a coma.
I have long felt a mission to change the medical communities vision of concussion, and to that end, copyrighted the term “subtle brain injury” and its web page, http://subtlebraininjury.com in 1999. Currently, we are in development of a new advocacy mission, which I call Concussion Clinics, an effort to change the protocol for concussion care for average citizens to the daily monitoring that athletes get after head injury. See our You Tube videos on that issue at http://youtube.com/braininjuryattorney
I am a member of the Brain Injury Association of Wisconsin My service for the BIA-WI has included serving two terms on its board of directors and editing the association’s newsletter. I was also appoined by Wisconsin’s governor to the state sub-agency, the TBI-Advisory Board.
I am currently the Vice Chair of the Association of Trial Lawyers of America, Litigation Group for TBI.
I graduated from Northwestern University, BS-Journalism and am a 1979 graduate cum laude of the University of Wisconsin Law School.
Subtle Brain Damage, Regardless what you Call it.
A rose by any other name…. http://subtlebraininjury.com
The medical community has always had labels for brain injuries, including the mild, moderate and severe classification, as well as coma and post concussion syndrome. None of these labels recognize the severity of all permanent brain injury.
Mild. But would a “mild” brain injury, by any other name, still be so ignored? Mild is a 75 degree day, a southerly breeze. Mild is not a day with only partial light, where the temperature fluctuates wildly, with unexpected torrents and lightning strikes. Mild does not imply a permanent alteration in who a person is.
Concussion. How about concussion? A concussion implies a transient wave like disruption, a disruption that shortly returns to normal, like a drum or a cymbal after the sound fades. But our minds are not musical instruments that are tuned for vibration. They are jello like masses, containing nerve cells with little or no elasticity. We do not become dazed and confused because the jello in our skulls is vibrated, we do so because our brains come into contact with a hard object, the skull, or because the acceleration and deceleration in this mass, twists these nerve fibers as surely as an ankle is sprained or broken, a muscle torn. But unlike a muscle which can freely swell until the pathology heals, our brains have no room to expand and no tolerance for stretching and tearing. Brain cells do not regenerate.
Post Concussive Syndrome or PCS. Post concussion syndrome, or PCS, isn’t much better. I hate labeling anything a syndrome. A syndrome implies some conglomeration of symptoms, that can’t actually be identified as a real disease. If concussion understates the acute injury, labeling a persistent concussion a syndrome implies it is something we aren’t quite sure is real.
Further, PCS has gotten to be a catch all for all those things the doctors don’t know what else to call. Brain injury without coma involves so many different types of pathology, it is misdirected to label them all concussive, and lingering problems, post concussive.
Non-Coma Brain Injury. Why not just brain injury, not mild, moderate or severe, but brain injury. Is the term too harsh? Does it offend someone’s politically correct sensitivities about labeling people? Someone please think of a better term for “permanent brain injury without coma”, but until they do, I will stick to brain injury – for that is what it is, non-transient, permanent alteration of the way in which the brain absorbs and processes information and thought.
PCS, Mild, Non-Coma Brain Injury = Damage to Our Minds.
The medical community has always had labels for brain injuries, including the mild, moderate and severe classification, as well as coma and post concussion syndrome. None of these labels recognize the severity of all permanent brain injury.
Mild. But would a “mild” brain injury, by any other name, still be so ignored? Mild is a 75 degree day, a southerly breeze. Mild is not a day with only partial light, where the temperature fluctuates wildly, with unexpected torrents and lightning strikes. Mild does not imply a permanent alteration in who a person is.
Concussion. How about concussion? A concussion implies a transient wave like disruption, a disruption that shortly returns to normal, like a drum or a cymbal after the sound fades. But our minds are not musical instruments that are tuned for vibration. They are jello like masses, containing nerve cells with little or no elasticity. We do not become dazed and confused because the jello in our skulls is vibrated, we do so because our brains come into contact with a hard object, the skull, or because the acceleration and deceleration in this mass, twists these nerve fibers as surely as an ankle is sprained or broken, a muscle torn. But unlike a muscle which can freely swell until the pathology heals, our brains have no room to expand and no tolerance for stretching and tearing. Brain cells do not regenerate.
Post Concussive Syndrome or PCS. Post concussion syndrome, or PCS, isn’t much better. I hate labeling anything a syndrome. A syndrome implies some conglomeration of symptoms, that can’t actually be identified as a real disease. If concussion understates the acute injury, labeling a persistent concussion a syndrome implies it is something we aren’t quite sure is real.
Further, PCS has gotten to be a catch all for all those things the doctors don’t know what else to call. Brain injury without coma involves so many different types of pathology, it is misdirected to label them all concussive, and lingering problems, post concussive.
Non-Coma Brain Injury. Why not just brain injury, not mild, moderate or severe, but brain injury. Is the term too harsh? Does it offend someone’s politically correct sensitivities about labeling people? Someone please think of a better term for “permanent brain injury without coma”, but until they do, I will stick to brain injury – for that is what it is, non-transient, permanent alteration of the way in which the brain absorbs and processes information and thought.
PCS, Mild, Non-Coma Brain Injury = Damage to Our Minds.