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Helping juries connect with clients who have TBI, chronic pain or depression

December 13, 2012 by Steven M. Gursten

How to help juries to understand and empathize with an auto accident victim with commonly misunderstood injuries

Why are so many people who suffer from TBI, or chronic pain, found so unlikeable by juries?  And what things can you as a trial attorney do to help make your client more likeable so a jury will be more inclined to want to help them?

Today I’m posting a video of a question and answer session I had with my longtime friend and fellow brain injury attorney, Woody Igou. Woody is head of the Law Office of Steven “Woody” Igou  in Florida, and founded BrainInjury.com. Woody and I just came back from my Advanced Auto Accident Seminar in Las Vegas in November, where Woody gave tips on how lawyers can confront these challenges.

In this video, lawyers will learn how to maximize damages  for their clients who have traumatic brain injuries, chronic pain, depression and other serious personal injuries; by getting juries to understand and empathize with the unique challenges these clients face.

As we discuss, while there are some things that injury attorneys can do to help make their injured clients more likeable, the first reality that attorneys need to confront is that when people are in constant pain, or depressed, or constantly fatigued, or suffer from a TBI, they will not seem likeable at first. And if juries don’t like someone, they are less inclined to want to help that person.

Such a jury is also more inclined to find reasons to distance themselves from your client, and this is where dangerous psychological defense mechanisms like defensive attribution can play a role.  Defensive attribution is why some juries return trial verdicts finding no negligence in rear-end car accident crashes.

But juries need to be reminded that it is not your client’s fault. Your clients are experiencing symptoms of the injuries that can cause serious personality changes. These symptoms also can change, evolve and worsen over time, as in the case of mild traumatic brain injury when it’s multiplied by the effects of chronic pain, depression and fatigue.

Attorneys must be familiar with these injuries and complicated symptoms so they can help a jury to understand why these injuries may make their client at first appear to not be likeable.

And it’s up to  the attorney to tell the story of the after effects in a way that connects to the jury. This can be done by projecting emotion that will help the jury empathize with your client and her great struggles as she deals with the difficulties and personality changes brought on by TBI, chronic pain and depression.

Tips from Woody’s recent $27.6 million TBI verdict

  1. While the defense had been pulled by Progressive and the defendant did not appear, Woody went ahead and had a two day jury trial.
  2. At the time this accident occurred, his 35 year-old client was going about 60 miles per hour down the highway and was rear-ended by a rental vehicle going over 100 miles per hour. She was dazed but was not rendered unconscious. Within a couple of weeks, she developed a serious speech defect, as well as cognitive issues. Her very hesitant stuttering aphasia remained fairly constant for the past six years.
  3. To demonstrate how horrifying it is for her to meet people who have to confront her speech difficulties, Woody spent the first two minutes of his opening statement speaking like she did.  Jurors’ mouths were open and it was very effective.
  4. It’s important to show that Woody tried this case by outlining his client’s reduced cognitive reserve.  Her future medicals plan was over $4 million dollars and the jury gave her $9 million dollars. (They were allowed to add for future medical inflation).
  5. Recent studies indicate that a single traumatic brain injury can lead to the development of neurofibrillary tangles (NFT) and plaques, which are both consistent with the aging of the brain and ongoing neuro-degeneration.  It is not just about repeated traumas in the NFL anymore.

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