Traumatic Brain Injury and Before and After Witnesses

INTRODUCTION

Taking the time to effectively interview jurors after a trial is an invaluable tool in trial preparation. That is when you learn where you went right and where you went wrong. This author commits to writing a list of at least five things he could have done better for purposes of self improvement. However, sometimes not seeing the forest for the trees is not so much about knowing about trees as about knowing when you are in a forest. The purpose of this article is to assist attorneys who are trying to demonstrate mild traumatic brain injury to insurance adjusters, defense lawyers, juries, and to other people they do not know.

THAT WAS THEN THIS IS NOW

The job of the lawyer in proving the "unseen" injury of traumatic brain injury is to provide a believable before and after comparison of the injured persons abilities. Those abilities become the planets in a once familiar galaxy which is now misaligned and, at times, on a collision course with other planets. Creativity is key. Following is a list; not an exhaustive list; but a potential list of abilities that a person may have had change as a result of brain injury.

1. Job Skills

2. Job Socialization

3. Job Success or Promotion

4. Recreation

5. Social Skills

6. Partner Skills

Spouse/Significant Other

7. Initiation

8. Civic Responsibility

9. Spiritual Commitments

10. Sporting Activities

These are all potential skills that a person may have affected as a result of traumatic brain injury. It is important to note that a person need not suffer alteration in skills in all of these areas. That is something that a person who would like to believe there is no injury will point out. In other words, if a person can still attend church and go to Sunday school, then the fact that they have been fired from their job due to insubordination, for instance, would make the person unaffected by any potential brain injury. (We will cover this concept in detail below)

HYPOTHETICAL

For purposes of this article we will consider three individuals; the first will be a 52 year old construction worker; the second will be a 26 year old waiter; the third will be a 56 year old comedian. Try to think of what types of, for instance, job skills (from the list previously mentioned) you would expect from a 52 year old construction worker; a 26 year old waiter; and a 56 year old comedian. For the construction worker you might suggest an ability to read blue prints or follow instructions. For the waiter you may suggest the ability to remember multiple orders, the ability to add numbers for purposes of the check, the ability to be personable to diners, etc. For the 56 year old comedian you might suggest an ability to remember jokes, an ability to deliver them with the appropriate timing, the ability to think quick on ones proverbial feet, etc. These would be good suggestions. Of course an in depth conversation with the actual hypothetical client is absolutely necessary. Moreover, a conversation with the hypothetical clients friends, family, significant other, or other person, is necessary. A similar exercise could be conducted for any one of the items listed above in terms of what one would expect from these three individuals. Each of these needs to be explored, dissected, and interpreted for expression to the jury, insurance adjuster, defense lawyer, or any other person.

PROCESSING THE INFORMATION

I have found, and imagine all of us have, that for every opinion there is a counter opinion. This is certainly true in the areas of mild traumatic brain injury litigation. Where one expert says the result of a test is "white," another expert will come in to say it means "black." During the course of litigation it becomes clearer what the "non-believing side" is going to use to support the position that no brain injury exists. Likewise, the "believing side" owes it to their client to present all evidence supportive of the fact that it does exist. This author recently resolved a mild traumatic brain injury case that was set for trial in less than one month via mediation. It had become apparent during the course of that litigation that the defendants were going to use videotapes which had been produced in discovery showing the plaintiff doing his "business" comedy. This actually comes from the third hypothetical we have been using involving a 56 year old comedian. The defendants thought, by showing the jury 144 videotapes of the plaintiff performing his radio talk show that they would convince the jury, since he was able to do that, that he was not brain injured. In fact the videotaped talk show had been produced a year after the injury and indeed showed the Plaintiff hosting two hour radio shows everyday. There were 144 videotapes. It all seemed pretty compelling for the defense. However, as the "believing side", and the plaintiffs attorney, I knew that the truth of the matter was not being told by simply putting those tapes in the VCR. My clients job skills had changed. In fact, when we reviewed those 144 tapes we saw consistent and definite errors conducive with the symptoms of mild traumatic brain injury. Things like: forgetting dates, sponsors, guests, story information, having to keep notes, forgetting the telephone number of the talk show. To show this to the "unbelieving side" we compiled 144 tapes in such a way showing the consistency in the problems the plaintiff had hosting the talk show. Additionally, we interviewed the production manager and the production assistant involved in the producing of the radio talk show. They both were very specific in pointing out that the plaintiff did not behave as "you or I would on tape." The taped interviews, the outtakes of the 144 tapes, along with an interview with a popular comedian who knew the plaintiff, were used to make the mediator and insurance company understand the very real impact of mild traumatic brain injury on my client. This in turn resulted in a significant award. The point is that it is incumbent on the plantiffs attorney to dispel the myths propagated by the "unbelieving side" so that the people making the decisions (insurance companies, a defense attorney) can be properly apprise of the truth.

BEFORE AND AFTER WITNESSES

What attorneys call "before and after witnesses" are those witnesses who can attest to the behavior and personality of a person before an injury and after an injury. Of course locating these individuals is not an easy thing to accomplish. For instance, there may be someone who knew the injured party in high school but has not seen them for sometime after the injury. On the other hand, there maybe someone who the injured party met after the injury but did not really know them before the injury. In any case, these witnesses are crucial to proving how the injured party was before the injury and how the injured party was after the injury. Where you can find people, for instance siblings, spouses, or others, that knew the person both before and after the injury makes for a more complete presentation.

WHEN LESS IS MORE AND WHEN MORE IS MORE

Less is more when you are putting the witness on the stand. Be concise and precise. Know in advance what particular areas the witness will be able to assist you with in helping the jury to understand how your client has been impacted by mild traumatic brain injury. Do not try to get more out of the witness than can be had. These witnesses typically last between five and fifteen minutes. They typically do not involve long cross examination since this is where the defense can only look bad trying to beat up on an otherwise honest witness. More is more regarding the number of before and after witnesses you have. Sometimes, I list as many as twenty-six before and after witnesses in pre-trial so the defense can learn as much as there is to learn about my clients changed condition before trial. I advise my clients at the initial interviews that I absolutely need the names of between five and ten people who knew or know the client and the changes that have resulted since the injury. This is crucial. I explain that this is not an option. In other words, without these people, I cannot represent them in a mild traumatic brain injury case. Over the course of the first few weeks of my representation I obtain the names of people, contact information, and have them interviewed. This is where I began to learn a lot about my clients from other people. I frequently, get a defense motion to exclude multiple witnesses (before and after witnesses) based on redundant testimony. I have never had this type of motion succeed since I am always able to tell the trial Judge that the testimony anticipated will be unique from the witnesses perspective of how and where the plaintiff exhibits a change in personality, job skills, etc. In other words each witness will have unique testimony of observations supporting brain injury.

CONCLUSION

In order to make another person understand mild traumatic injury, a lawyer needs to consider factors other then medical opinions, neuropsychological opinions, psychiatric opinions, and the defense experts opinions. The trial lawyer needs to go deeper into the life and times of the client. The lawyer needs to examine, analyze, find out, and use the testimony and evidence provided by people who can share changes they have observed with the injured party. In my humble opinion, this is understanding mild traumatic brain injury.

Timothy R. Titolo is a trial attorney in Las Vegas, Nevada. His practice concentrates on representing people and their families, who have suffered traumatic brain injury. He can be contacted at the following address: Titolo Law Office 10100 West Charleston Blvd. Suite 100 Las Vegas, Nevada 89134 Tel : 702.869.5100 Fax: 702.869.5111 E-mail: tim@titololawoffice.com Website: www titololawoffice.com

Timothy R. Titolo is Las Vegas and Nevadas experienced trial attorney. Mr. Titolo handles all types of personal injury cases, including catastrophic and serious injuries and wrongful death. He has particular expertise in traumatic brain injury (TBI), spinal cord injury and nerve damage cases.

Titolo Law Office has earned a reputation for achieving significant results. Through his successes, as well as by writing articles and giving presentations to attorneys and medical professionals around the country, Mr. Titolo has garnered the respect of colleagues.

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What Exactly Does A Personal Injury and Medical Malpractice Lawyer Do?

He helps navigate the murky waters that can trap an unknowing victim into muck and mire.

When a person slips and falls, causing injury, your lawyer needs to find out why you slipped.

Was there a defect on the property that should have been corrected? Was it simply that you didn't see where you were walking? Was the staircase not up to code so as to make it dangerous? These are the questions your lawyer will need to examine.

Products causing injury

This is known as product liability. Let's say you opened a bottle of soda and the cap exploded off the bottle and into your eye causing permanent damage. Is the bottling company to blame? Possibly. How about a miter saw that is supposed to have a guard to protect your fingers as you slide the wood into the cutting blade? What about a car that permits you to move the gear into reverse without first putting your foot on the brake? (This is called a gear interlock to prevent kids from playing with the gear lever. It's happened where they slip the gears into reverse and the car starts to move causing injury).

Evaluation of a product that is commonly used or bought can be very technical. Many times we need to hire engineers to evaluate a product to see whether it was designed properly and was properly placed into the marketplace.

Medical Malpractice

Malpractice is a departure from good and accepted medical care causing injury. As with anyone, doctors are held accountable for their actions, as we all are. In order to confirm evidence of wrongdoing we need to have medical experts review your records before being able to start a lawsuit for your injuries. Most cases that I see in my office do not meet the strict criteria for being able to start a case. Of those we accept, some will go to trial and others will be settled before trial.

Malpractice cases are one of the most hotly contested areas of law today. The defense attorneys we often encounter are extremely well educated and trained at defending these lawsuits.

Car accidents

We all know what terrible reputations lawyers get from all those tacky advertisements showing damaged cars and clients in wheelchairs holding up poster-sized checks with lots of zeros after some number.

But the fact is that there are accidents and very serious injuries that result from these horrible events. Lives are shattered from a moment of carelessness. Just look around at how many people still talk on their cell phone while driving even though it's against the law!

Most people aren't interested in these informative newsletters because luckily, a tragedy hasn't befallen them. That's ok. We hope that it never does. The purpose of this newsletter is to give my readers an understanding of what we as lawyers do, and how we can help if the need ever arises. You'll find that I like to inform my readers about their options before they ever need a lawyer, and before they ever step foot into a lawyer's office. How many other lawyers do you know who do that?

In an accident case, I look to see how the accident happened. Where were you driving? What were the road conditions? Was your car in good mechanical condition? Was someone speeding? Did someone turn where they shouldn't have been turning? Was horseplay involved? (Think back to when a turkey was thrown from a moving car causing terrible damage to the woman driving behind them).

While going about our daily lives we shouldn't have to worry ourselves about getting injured. Common sense should dictate what good conduct is and what is not. Unfortunately, there are many people out there who are simply careless about how they do their daily activities. Haven't we all seen people reading the newspaper while stuck in traffic- and they're driving! How about applying makeup on the way to work, and driving at the same time?

Imagine this scenario

A woman is late for work.

She's in her car and traffic is crawling. She's putting on lipstick and looking in the rearview mirror to see if it's on correctly. At the same time her cell phone rings, and while answering it, she decides to light her cigarette. Unfortunately for her, the car lighter drops to her feet and now she's got her lipstick in one hand, the cell phone in the other, a cigarette dangling in her lips, and she's supposed to be paying attention to the road.

Can't you just hear the accident in your head, and visualize the crushing of metal, as her eyes are on the floor looking for the lighter? Believe me, there are plenty of cases like this one that have caused other people injury.

Imagine if people were never careless! There would be no accidents, no need for insurance, and there'd be no personal injury lawsuits. Unfortunately, we are not perfect and accidents do happen.

But how then do you determine whether the accident was something that couldn't be avoided or was the result of lack of attention? We must conduct a thorough and detailed investigation.

Remember, when an injured victim comes to us, they're telling us what happened to them from their point of view. We have to investigate and make sure that all other points of view (witnesses) can confirm what we've been told. When we do that, we build your case and can then support the facts that led to your injury.

Dog Bites

Did you know that certain types of dogs are more prone to bite someone than others? Let's look at the pit bull for example. Just because a pit bull bites someone, as opposed to a tiny Chihuahua, does that mean the owner of the dog will be held responsible? The answer depends on many factors.

If the dog has never had any prior vicious tendencies and has never bitten anyone before, how then can his owner be responsible for this biting episode? One could argue that all pit bulls in general, are inherently violent. Not a bad argument to make, but not a totally accurate one either. What if you learned that before biting, the dog was tormented and teased repeatedly by a guest? Would that change things? Sure it would.

Injustice, humiliation and psychological injuries

We can all tell when an injustice happens-

Someone is pulled over because the color of his skin is different from those living in the neighborhood.

Someone is denied entry to a club because their religious beliefs are different than those who run the club.

Someone is denied service at a restaurant because of the way they dress or the accent of their voice. How about a woman who was denied a partnership because she was pregnant? What about the indignity of a high school football player who was sexually abused while away at football training camp with his high school team?

Despite all of our advances today, there is still bigotry, prejudice and hatred in this country. If you're a victim of injustice or humiliation what can you do about it? There are certain types of lawsuits that allow victims of injustice to seek justice. They're sometimes called discrimination lawsuits, or violation of civil rights lawsuits. The pain inflicted by injustice can be devastating and have long-term social and psychological effects.

Your lawyer will ask about your history, both medical and psychological. You will probably be asked to have specific psychological testing and counseling to confirm and identify some of the problems you are currently experiencing.

I know that some people believe that if an injury can't be seen that means it's less meaningful than a horrible disfiguring injury. That's not always true.

I'll bet there's something in everyone's childhood where they can remember a parent or an older child saying something bad about you. Looking back all those years, you still vividly remember the hurt you experienced that day. That's injustice. There's no 'physical' injury, but the emotional scar is ever-present.

So, "What does a lawyer do?"

A lawyer is someone to guide you; to help you through your trouble; to explain the law to you and how the law applies to your facts. A lawyer should be advising you of your legal options and what you can do to correct the injustices that have happened to you. That's what a good lawyer does.

Attorney Oginski has been in practice for 17 years as a trial lawyer practicing exclusively in the State of New York. Having his own law firm, he is able to provide the utmost in personalized, individualized attention to each and every client. In our office, a client is not a file number. Client's are always treated with the respect they deserve and expect from a professional. Mr. Oginski is always aware of every aspect of a client's case from start to finish.

Gerry represents injured people in injury cases and medical malpractice matters in Brooklyn, Queens, New York City, the Bronx, Staten Island, Nassau and Suffolk Counties. You can reach him at http://www.oginski-law.com, or 516-487-8207. All inquiries are free and totally confidential.

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Car Accident Do's and Don'ts

A car accident can permanently change your entire life in the blink of an eye. If you have been seriously injured in a car accident through no fault of your own, you deserve to recover compensation to help you recover from your injuries.

I hear about people all the time that put their car accident claim at risk simply because they either failed to do something, or did something else that they shouldnt have, says Jonathan R. Mani, a Charleston, West Virginia car accident lawyer, the best thing to do is be aware of the different thing you should and shouldnt do after a car accident.

The time period immediately following you car accident is the most important time concerning your car accident claim. After a car accident, you should:
-Call the Authorities The police will help sort out the situation and they will also create a police report about the car accident that will identify who they believe is at fault.
-See a Doctor Injuries often arise months after car accidents occur, so it is important that you see a doctor immediately to determine if you have suffered any injuries that you are unaware of.
-Obtain Information Get the contact information for all drivers, passenger, and witnesses of the car accident. Also, be sure to get the insurance information, VIN number, and license plate number of all the vehicles involved in the car accident.
-Take Pictures You should have a disposable camera in your car that you can use to take pictures of the car accident. You should take as many pictures as it takes to get a good representation of what occurred.
-Call a Car Accident Attorney An experienced car accident attorney will help you deal with the insurance companies and their adjusters, they will speak with the other drivers, and they will help you identify what injuries you have suffered from the car accident.

There are also certain things that you should absolutely avoid after a car accident. After your car accident, you should not:
-Admit Fault Car accidents are confusing and complex, and you should never admit fault because after an investigation into the car accident circumstances, it may be shown that you were not actually at fault. By admitting fault, you may not be able to receive the appropriate compensation.
-Leave the Scene This is not only illegal, but even if you are not at fault for the car accident, you will drastically limit your ability to recover from your car accident claim.
-Wait Many people choose to wait for the insurance companies to contact them, or take their time to call an experienced car accident lawyer. This can severely impact the outcome of your car accident claim. If you have been involved in a car accident, it is important that you contact a car accident lawyer as soon as possible and get the ball rolling on your claim.
-Sign Anything If you are presented with any papers from your insurance company or the other drivers insurance company, make sure you have an experienced car accident attorney review them before you sign anything. Signing the wrong papers may prevent your ability to recover from your car accident claim.

If you have been involved in a car accident, one of the most important things you can do to benefit your car accident claim is contact an experienced car accident attorney to help you file your claim and recover the compensation you deserve.

Please click here for more information regarding car accident law in the Charleston, West Virginia area.

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