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Overcoming Common Defenses In Traumatic Brain Injury Cases (Part I)

Client Intake Considerations

Moderate and severe brain injury cases are virtually always compelling. By definition they involve a loss of consciousness greater than a few minutes, and often involve an injury that is visible on an imaging study. There is no serious dispute that these injuries can have permanent consequences that are often life-altering. Because of this, these cases do not present any particular intake challenges. The situation is different, however, with mild traumatic brain injuries. Intake in these cases can be more challenging.

A long time ago I somehow got it into my head that I was going to train my golden retriever to be a proper retriever - the kind that would bring anything back, would respond to directional signals from 100 yards away, and would drop the retrieved object at my feet no matter how enticing or tasty. Being a young lawyer with a mind ruined by law school, I figured the best way to embark on any project was to read some books on the subject, so I did that. One of those books - a definitive text in the field, according to the cover -- began with the following first lesson: Throw something about thirty feet away. If the dog does not go get the object and bring it back to you right away ... go get another dog. This from a book that promised to tell me how to train my retriever.

I think a similar point can be made about mild traumatic brain injury cases. Get good clients. And by good I mean unfailingly honest, willing to work to the extent their capabilities permit it, and very much intent on getting their life back together as best they can. If your client has these characteristics, everything else becomes a solvable problem. If they don't - if your client is exaggerating to get a recovery, or seems to be engineering a tale to tell you what they think you want to hear -- get another client.

You and your client have to be the truthteller in the courtroom and throughout the litigation process. No exceptions. Your client cannot exaggerate and cannot be fabricating his symptoms or problems, in any way. Proving damages in mild traumatic brain injury cases often relies in on things reported by your client. The medical records and other sources of evidence have to be consistent with the injury and the known facts. This does not mean things have to be the same all the time - many medical problems wax and wane, improve and worsen, sometimes doctors do not write everything down, and sometimes patients are focused on one thing or another. But if your client is making things up or exaggerating, they will be caught. Count on it.

Also bear in mind that many people suffering from the effects of traumatic brain injuries do not at first (or sometimes, ever) recognize the full extent of their deficits. It can sometimes be important to talk to the client's spouse, children, or friends. They may have noticed changes far more profound than the potential client reports.

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