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Teaching lawyers how to win traumatic brain injury cases at trial

September 24, 2014 by Steven M. Gursten

Steven Gursten speaking to Michigan Association for Justice on proving TBI to insurance adjusters, and settlement tips and tactics

Attorney Steven Gursten

Next week, I’ll be presenting to the Michigan Association for Justice during the annual No Fault Institute legal seminar. My presentation is called, “Mild Traumatic Brain Injury  in Motor Vehicle Crash Cases – How to Identify and Prove this to Adjusters and Juries.”

It’s an important topic, because today in Michigan, there are too many personal injury lawyers who won’t take on traumatic brain injury (TBI) cases. The truth is, these cases are more difficult than most other personal injury cases with obvious physical injuries that any jury or cynical insurance adjuster can clearly see.

Brain injuries are different. Often these cases are called “invisible injury” cases. And trying any case that requires a jury to believe the plaintiff in a lawsuit is injured when they can’t prove the injury on diagnostic imaging is always going to be more difficult (MRI and CT scans are frequently negative, or normal, even in cases of serious and permanent brain injury).

Brain injury cases can be more expensive and require more doctors and experts to explain the injury and prove it at trial. These cases are more complicated, because they require attorneys to learn a lot of the medicine and the science on TBI. Also, the medicine, to be perfectly honest, is counter-intuitive.

Most attorneys, let alone juries, don’t understand how you can have a serious brain injury with no loss of consciousness; how you can have a serious brain injury with a perfect Glasgow Coma Scale, with normal MRIs of the brain and often where the symptoms and problems are not immediately obvious, but manifest themselves over days, weeks and months.

Most important of all, a plaintiff has to be likeable, believable and credible. But often people in the classic car accident-type brain injury lawsuit have frontal lobe damage that effects their likeability.

Brain injury cases are tough. And because they’re tough, often insurance company adjusters and defense lawyers aggressively defend these cases. Because too many lawyers who do not fully understand brain injury cases are forced to go to trial , and subsequently lose or receive terrible jury verdicts, it lowers the overall settlement values for TBI cases and what insurance companies are willing to pay to settle any brain injury lawsuit.

It’s a nasty, vicious cycle that favors the defense. It’s no wonder so many lawyers who say they practice traumatic brain injury in Michigan now refuse to take on these cases, or settle them short of their full value when they do.

So I will be giving a very tactical talk.  I have been fortunate to have received the top-reported jury verdict in Michigan for automobile accident cases over multiple years, and many of these cases have involved “mild” traumatic brain injury. I’ve also received some of the top-reported settlements for brain injury cases in Michigan, so I will be discussing what works and how to prove these cases to juries and insurance adjusters.

Most of all, I want to emphasize that the people we help with brain injury need compassion in a world that often doesn’t  understand or want to understand what they’re experiencing.  The people we help deserve to have effective and caring legal representation from lawyers who truly understand the challenges they face.

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