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The TBI Case: Too many Fleas and it’s a Dog

July 9, 2009 by Steven M. Gursten

Beware of 14 Factors that Can Ruin a Traumatic Brain Injury Case

This is part six of my series on tips for lawyers handling traumatic brain injury cases. In my experience, I’ve found the incredible irony underlying any TBI case is that the plaintiff — like any plaintiff in any personal injury case — must be likable, honest and credible for a jury to award a fair verdict. But, as we frequently experience with clients, it’s often the brain injury itself that makes a plaintiff somewhat unlikable.

This is a noble fight to make. But sometimes it’s an uphill battle. Just like a personal injury lawyer can explain the real facts underlying the “McDonalds coffee verdict” until he is blue in the face, those facts will never sink in with some people. Likewise, when helping brain injury victims, my own feeling is that brain injury or not, if the defense can successfully attack the credibility of a person in too many ways, the ship will usually sink. Keep in mind that behavioral symptoms of traumatic brain injury include decreased ability to initiate responses, verbal and physical aggression, agitation, shallow self-awareness, impulsiveness and social dis-inhibition. Mood disorders, personality changes, altered emotional control, depression and anxiety are also prevalent with traumatic brain injury from auto accidents.

Car accident attorneys may be well-served to look for a fair settlement on behalf of their brain injured clients.

It also bears emphasizing that many of these defense challenges are completely unfair and run contrary to the well-established medicine and science of traumatic brain injury. For example, if a defense neuropsychologist finds poor motivation, she is not saying your client does not have a brain injury. She’s only saying that the test results, for whatever reason (chronic pain, fatigue, depression, or a conscious effort to perform badly and deceive the tester) are invalid. It is the defense lawyer who emphasizes malingering as but one of several legitimate alternative explanations.

Some “fleas” to be wary of in a TBI case include:

1. A mild traumatic brain injury or psychiatric injury with no accompanying physical injuries and no loss of consciousness

2. Poor grades and school performance beforehand

3. Prior accidents, work injuries, assaults, lawsuits

4. A diagnosis of malingering or exaggeration

5. A plaintiff who is wearing a soft tissue cervical collar or sunglasses for weeks or months after the car accident or truck accident

6. Low vehicle damage

7. Damaging surveillance

8. A long delay in the diagnosis or treatment of a brain injury

9. Attorney referrals to medical doctors

10. A criminal record, especially one involving theft, dishonesty or false statement

11. Poor work history

12. No lay witnesses, such as friends and family who can corroborate the injuries and no co-workers or supervisors who can testify on your client’s behalf

13. Failure to file or pay taxes

14. Failure to pay child support or alimony

I say on my Web site that lawyers who represent victims of traumatic brain injury have a special obligation, because TBI can be utterly devastating, yet difficult to prove. Remember, traumatic brain injury law — and the automobile accident exceptions that exist under Michigan law — require very specialized knowledge. If you are an attorney and would like to refer a traumatic brain injury case, or if you have TBI from an auto accident, call (800) 777-0028 and we can help.

Meanwhile, my last blog in my series of tips for traumatic brain injury lawyers, “Why TBI matters,” is coming soon.

Steven M. Gursten is a member of the American Association for Justice Traumatic Brian Injury Group and lectures on TBI throughout the country. He was recently invited to become the first Michigan traumatic brain injury lawyer to serve on the legal committee for the Sarah Jane Brain Project. In 2008, Steve received a trial verdict of $5.65 million for a TBI victim; the largest reported auto negligence verdict in Michigan for the year, according to Michigan Lawyers Weekly.

— Photo courtesy of Creative Commons, by left-hand

Related information:

What is TBI?

TBI Victims Can Reach Jury

TBI Cases Destroyed in Federal Court

Michigan Auto Law exclusively handles car accident, truck accident and motorcycle accident cases throughout the entire state of Michigan. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights. For more information, please refer to our law firm quick facts.

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