Traumatic brain Injury – Issues and Challenges on the Legal Front

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A good brain injury trial lawyer can help identify and preserve the critical evidence necessary to prove losses to an insurance company and later, if necessary, in court.

Why might we need a lawyer?

When a person is injured, the person and his/her family are at their most vulnerable. Few of us perceive that we could ever become an accident victim, so we plan poorly. When tragedy strikes, we are ill prepared. We receive conflicting answers to our numerous questions. We don’t know where to turn for answers. A lawyer, the right lawyer, can help.

What should be done if a brain injury was caused by negligence?

Under our law, if a person or entity acts negligently, and someone gets hurt as a result, the injured person may recover damages from the negligent party. Thus the very first issue is determining whether the injury came about because another person or entity acted negligently.

This is a critical first step. Too often injury victims accept a conclusion by a government agency or insurance adjuster that there was no negligence. The fact that an agency or insurance company says there is no negligence does not make it so. A good trial lawyer can help with that determination early on and avoid the risk of letting too much time pass.

Assuming that the brain injury is proved to be caused by another’s negligence, the victim is allowed to recover for such items as expenses of treatment, recovery, lost earnings, lost ability to work in the future, and anticipated costs associated with future treatment. The victim is also allowed to recover for the pain, suffering, frustration, loss of enjoyment of life, the loss of the life he or she once had. In certain circumstances a spouse can recover for the loss of consortium, society, and companionship as well. A good brain injury trial lawyer can help identify and preserve the critical evidence necessary to prove these losses to an insurance company and later, if necessary, in court.

Who is the right lawyer in a brain injury case?

It is important to find a lawyer who understands and appreciates the special circumstances of the brain injury victim and is equipped to help. Traumatic brain injury is as poorly understood in the legal community as it is in the community at large. Few lawyers will appreciate the true difficulties and challenges of life with a brain injury. Fewer still are lawyers who understand brain injury and have the ability and experience to win these cases in court.

No doubt you have experienced the frustration of having family, friends, coworkers and acquaintances not understand about the causes and difficulties of traumatic brain injury. After all, the victim may look and talk perfectly fine (superficially at least). Imagine, then, the difficulty of conveying this message to a skeptical insurance company or even in court. A trial lawyer who understands brain injury can make this simple and understandable.

How do we find the right lawyer?

Ask around for references, and then ask lots of questions of the trial lawyer. Have you handled these cases before? Do you understand the medical specifics that cause traumatic brain injury? Do you understand the specific needs and problems caused to the victim and his/her family by this injury? Have you deposed (asked questions under oath) any neuropsychologists or other brain injury specialists? Have you tried any cases for persons who suffered traumatic brain injury?

How can we afford to pay a trial lawyer to help with our brain injury case?

We have no system of “legal insurance” to pay lawyer’s fees in this country. As trial lawyers we understand that most people cannot afford to pay a lawyer out of their pockets, the way a doctor expects to be paid for medical services. Because of this we have adopted the “contingent fee” as our primary mechanism for payment of our services. Under the contingent fee, we take a case with the understanding that the fee for our services will be paid only when a successful result is achieved, either through negotiated settlement or through victory in a hearing or trial. If the hearing or trial is unsuccessful, then there is no fee for the services rendered. Further, the amount of our fee is “contingent” upon the amount recovered. Typically we agree that our fee will not exceed one-third of the gross amount recovered.

If everyone had to pay their legal fees out of their pockets, only those with money would be able to pursue their legal rights in court. Through the contingent fee mechanism, everyone – wealthy or not – has equal access to legal representation. At Berman & Simmons, we will meet with you and discuss your case, free of charge. If you hire us to pursue your recover for you, we will usually do so on a contingent fee basis. If we cannot pursue your case for you, you will not be charged for the consultation. We do this because we believe it is important that you find out your rights as soon as possible, and we don’t want concern over the cost of a consultation to stop you from calling.