Selecting a Brain Injury Lawyer

I just finished reading Harry Chapin media award winner Stephanie Mencimer’s expose book entitled “Blocking the Courthouse Door, How the Republican Party and its Corporate Allies are Taking Away Your Right to Sue.” Now I have not used this brain injury blog to express my own political feelings and beliefs, this is nevertheless a legal blog and the topic of the book certainly is relevant to those who love our civil justice system and depend upon it to hold those responsible for the harm that they cause.

Ms. Mencimer writes: “The right to a civil jury trial – guaranteed by the Bill of Rights – is in serious jeopardy. Personal injury lawsuits, the kind most despised by Bush and his business supporters are on the decline…. The notion that Americans who take on deep-pocketed defendants or health care providers are making out like bandits is belied by numbers showing that plaintiffs in civil cases are taking it on the chin, losing far more often than they win.”

Yet the perception of the legal system as out-of-whack has proven highly resistant to correction by the truth. This is by design. The movement… is the result of a concerted and successful campaign by large corporations (especially the tobacco and insurance industry, but many others besides), to get this issue on the table and limit their vulnerability in the civil justice system. They have spent decades, and many millions of dollars on focus groups and Madison Avenue public-relation research. They have funded institutes, sponsored academic research, bankrolled politicians, set up phony grass root organizations and fed copied to journalists.

For corporations, the self-interest involved is fairly plain. Tobacco companies, no longer able to dodge the bullet of liability for knowingly selling poisons, are making an end run around the civil justice system. If they can’t win a class-action suit, they’ll make suing itself illegal. Insurance companies, drowning in red ink from mismanagement and bad investments, hike insurance rates by huge sums and blame malpractice suits.

“This book is in part about the marriage of corporate desire for immunity from lawsuits and a new breed of GOP politics. It is also the story of how big businesses succeeded in taking bad public-policy proposals, packaging and stage managing them and selling them to the public through well-paid “experts” gullible journalists and intensely misleading propaganda all to the detriment of the average citizen, who still thinks that if he ever needs the legal system, it will be there for him. Unfortunately, as this book will show, in many parts of the country today, that is no longer the case.”

This book is a must-read for everyone. Too often I interview new clients who tell me “We are not the type of people who sue.”  What they really mean is they are not the people who really sue until they are harmed by another and need legal representation and the protection of the civil justice system. This outstanding book can be purchased at Amazon, Barnes & Noble and Borders as well as at your local bookstore.

First, let me wish everyone a happy new year! As we enter 2007, it is only appropriate to look back on this past year.

Certainly, 2006 was an exciting year. Besides having the honor of representing many people and their families who sustained injury in the past, this past year saw the completion of a professional life dream to publish a book on the handling of traumatic brain injury. Only weeks ago, I received hard copies of my book, Litigating Brain Injuries, which I co-authored with Jeffrey Brown, M.D., published by Thomson West. Once the book is offered to the public, I will post an announcement on this blog. I am extremely excited to see the completion of this project.

Over the past year, I ‘ve also had the pleasure of traveling to many cities and states in an effort to assist and educate other trial attorneys in becoming better advocates on behalf of people and families who have sustained a traumatic brain injury. Most recently, I traveled to New Orleans, my first trip since Katrina devastated that city and its surrounding areas. Interestingly, the cab ride from the airport into downtown New Orleans displays very little damage to the city, as one does not travel through the Ninth Ward between the airport and downtown.

What struck me was the lack of people in the city. As you may know, New Orleans’ population went from approximately 500,000 people to possibly under 200,000 people. While some tourists were in evidence, there has clearly been a drop-off of tourism in the city. New Orleans on a Thursday afternoon reminded me of a city waking up on a lazy Sunday morning. It is important to remember that very little has been done to help those individuals whose lives were so catastrophically devastated by Katrina.

Hopefully, better things are to come in 2007.

On Wednesday, November 29, 2006, I had the honor and pleasure of arguing before the New Jersey Supreme Court on behalf of the Association of Trial Lawyers of America-New Jersey (ATLA-NJ). The issue that was before the Court was whether or not photographs of damaged motor vehicles should be admissible at trial without the accompanying testimony of expert witnesses. The position of ATLA-NJ was that photographs should not be admissible without expert testimony because photos of damaged vehicles, whether major or minor, do not permit one to conclude either way whether or not the occupant was or was not injured. I was certainly honored along with my partner, Michael G. Donahue, Esq. and Anne P. McHugh, Esq. to serve as counsel for ATLA-NJ pro bono. Hopefully, we will have the Court’s decision in the near future.

Last year, my partner Michael G. Donahue and I were fortunate enough to settle a matter for a young child who suffered a severe brain injury when shelves at The Children’s Place fell on him. The case was ultimately resolved for $6.6 million.

Every year the New Jersey Law Journal publishes the top 20 personal injury awards of the year. I was pleased to learn that our settlement was listed in the top 10 personal injury awards of 2005-2006.

I have just returned from attending the ATLA National Convention in Seattle, Washington.

On Friday afternoon, I was privileged to be invited to speak on the topic of the “Fake Bad Scale – An Invalid Scale Used by Defense Doctors”. The next morning, I was once again honored to be elected to serve as treasurer of the Melvin Belli Society.

Melvin M. Belli was the founder and a past president of ATLA and is recognized as one of the truly great lawyers of the 20th century. His courageous, innovative use of demonstrative evidence and his willingness to teach and share his techniques are legendary. The Belli Society is a group of trial attorneys dedicated to preserving and enhancing the Belli legal legacy. 

While in Seattle, I spent the remainder of the next three days attending numerous meetings and attending many legal education seminars to enhance the quality of my advocacy on behalf of my clients.

I was also privileged to attend numerous meetings where some of the country’s great leaders spoke. Senators Patty Murray (Wash.), Senator Durbin (Ill.) and Senator Gordon Smith (Ore.) all spoke about the major issues going on in Washington, DC and the country right now. We also heard from Governor Richardson of New Mexico and Senator Schweitzer of Montana.

It was an excellent long weekend in Seattle where I was able to network with lawyers, Judges, and our political leaders.

I am pleased to advise that the New Jersey Supreme Court, Board on Attorney Certification, has recertified me as a Certified Civil Trial Attorney. I was first certified in 1986 and have now been recertified for the third time.

The Board on Attorney Certification was established by the Supreme Court of New Jersey in 1980 for the purpose of helping consumers find attorneys who have a recognized level of competence in particular fields of law. Attorneys may be designated by the Supreme Court as “certified attorneys” if they: are able to demonstrate sufficient levels of experience, education, knowledge and skill in a specific area of law or practice; have passed a rigorous examination; and have been recognized by their peers as having sufficient skills and reputation in the designated specialty.

Osborne v. Budd

This week’s New Jersey Law Journal’s Suits & Deals section mentions a case which I recently settled for a client.

On April 30, 1998 defendant Brenda Budd was traveling on Route 206 when she suddenly crossed lanes striking my client Gail Osborne’s vehicle. Ms. Osborne was taken to the emergency room, complaining of neck pain and released shortly that day. Over the next week, she began to experience problems with attention and concentration as well as balance. A CT scan taken shortly after the collision was normal. She was ultimately referred to Kessler Institute for Rehabilitation where she underwent neuropsychological testing and was diagnosed as having sustained a mild traumatic brain injury.

Following her discharge from the Kessler program, Ms. Osborne remained under the care of various specialists including a neuro-optometrist, neuro-otologist and neuropsychiatrist. The Social Security Administration found her to be totally disabled as a result of her injuries.

The defendant, Brenda Budd, and her attorney initially asserted that the collision occurred due to a defect in her vehicle’s axle. However, her insurance carrier, Liberty Mutual, got rid of the car prior to litigation so no testing could be done. Our lawsuit was instituted against Ms. Budd and a count for spoliation and punitive damages were asserted.

Trial was first commenced in the summer 2003. However, a mistrial was declared after plaintiff’s opening statement due to references to my client’s Social Security award. The case was next scheduled for trial in October 2003. After a three-week trial with the jury apparently hung, a second mistrial was declared when one of the deliberating jurors advised that she could not return for further deliberations.

The case was called for trial again on June 1, 2005 and after two days of negotiations I was able to settle the matter for $975,000.00.

Aside from choosing qualified medical specialists to care for you, one of the most important decisions on the road to recovery after you have suffered a traumatic brain injury is to retain a qualified attorney.

Finding a knowledgeable attorney who is experienced in handling traumatic brain injury matters

When you sought medical care after your injury, was it not imperative for you to be treated by qualified medical professionals or specialists trained in handling traumatic brain injury patients? To obtain optimum legal recovery, the same holds true when you hire your attorney. Here are some important characteristics that you should look for in the attorney that you retain:

1. The attorney that you want to represent your legal interests should understand the symptoms and medical effects resulting from a traumatic brain injury. When the attorney understands your injury and its effects, he/she will be better equipped to identify the issues that face you. When the attorney understands your situation, he/she will be better able to discuss your options and provide you with sound legal advice.

2. The attorney that you retain should be familiar with the work of prominent medical brain injury experts. When an attorney has traumatic brain injury experience, he/she will likely have an enhanced ability to identify the medical/legal issues in your case and will know the types of experts that must be retained in order to prepare your case and maximize your recovery.

3. Likewise, the attorney should have sufficient financial resources to retain numerous experts to evaluate your brain injury and testify with regard to your disability and impairments. The following types of experts are necessary for most traumatic brain injury cases: a neurologist, a neuropsychiatrist, a neuropsychologist, a vocational economist, a life care planner, and/or a bio-mechanical engineer. Since experts are expensive to retain, the attorney or law firm that you hire should be able to spend the necessary resources to retain these experts.

4. The attorney that you retain should be an experienced civil trial attorney. The State of New Jersey certifies a licensed attorney as a civil trial attorney only upon passing a written examination in that attorney’s field of practice, after that attorney has fulfilled certain minimum experience, reputation, and education requirements. While it is not necessary to be certified to practice law in New Jersey, a certification as a trial attorney assures that the attorney has sufficient minimal litigation and trial experience. Since traumatic brain injury cases require extensive knowledge of civil litigation and trial procedures, it may be best if you determine whether the attorney is a certified civil trial attorney.

5. Since the leading cause of traumatic brain injuries is motor vehicle collisions, the attorney that you retain should be knowledgeable of New Jersey’s Personal Injury Protection Insurance laws (otherwise known as “PIP” or “No Fault “). In New Jersey, an individual is required to seek reimbursement for medical expenses from his/her own automobile insurance company. Unfortunately, our Legislature has given control of the medical insurance reimbursement system to these automobile insurance companies! Consequently, the insurance companies have made it extremely difficult to obtain medical care and reimbursement of medical expenses. When dealing with a traumatic brain injury, which normally requires extensive medical treatment, it is imperative that the attorney have a working knowledge of New Jersey’s PIP or No Fault laws in order for her/him to fight against the insurance companies and make sure you obtain the necessary medical treatment and payment of medical bills.

6. The attorney that you retain must be in it for the long haul. It is unfortunate that most litigated cases take many years to resolve. It is even more unfortunate if your attorney will not or can not be with you for the entire litigation. Therefore, it is best if your attorney shows commitment to work with you for the entire litigation process, have the financial ability to prepare your case, and be prepared to take your matter to trial.

The research that you should perform before you retain an attorney

When you consult with an attorney, you should perform some basic investigation before you retain him/her to represent you.

1. Ask the attorney whether he/she has experience in handling these types of cases. If so, ask him/her how many cases he/she has handled and/or tried.

2. Ask the attorney if he/she is a certified civil trial attorney. Find out how long ago he/she received the certification.

3. Ask the attorney whether he/she has written articles, spoken at legal conferences, or holds board positions with organizations related to traumatic brain injuries.

4. Go to the attorney’s or law firm’s website.

Fortunately, in New Jersey, most attorneys will handle personal injury cases on a “contingent fee” basis. This means that an injured individual will not have to pay legal fees until after the case is satisfactorily concluded. Only when the case has concluded should the attorney be paid a percentage of the net recovery. What this means to you is that you will not be compelled to pay money up front to retain an attorney to handle your traumatic brain injury case and you will be able to retain the best attorney without making the cost an issue.

When selecting a trial attorney to represent you or your family member who has suffered a traumatic brain injury, it is important to select an attorney who is Board certified. Many states, like New Jersey, have their own state Board certification. In New Jersey, for example, a Board on attorney certification was established by the Supreme Court of New Jersey in 1980 for the purpose of helping consumers find attorneys who have a recognized level of competence in particular fields of law. Attorneys may be designated by the Supreme Court as “Certified Attorneys” if they are able to demonstrate sufficient levels of experience, education, knowledge and skill in a specific area of law or practice, have passed a rigorous examination and have been recognized by their peers as having sufficient skills and reputation in the designated specialty. For additional information, visit the New Jersey Board on Attorney Certification website. Continue Reading Board certified attorney

In selecting an attorney to represent you, it is essential that that attorney have the ability to incur the necessary expenses to properly represent a client with an acquired traumatic brain injury. Pretrial expenses in these types of claims can run between $20,000-$50,000 and sometimes more. Trial expenses can exceed $25,000 or more. In my experience, it is impractical to prepare the traumatic brain injury case utilizing solely a neurologist and/or a neuropsychologist. Quite often, not only do you need a neurologist and a neuropsychologist, but you will need a consulting neuropsychologist to review the defendant’s testing data, a rehab physcian, a life care planner and a vocational economist. In many instances a biomechanical engineer and quite often an expert in PET scans and neuroimaging will also be required. When dealing with a child who has suffered a brain injury, it will be necessary to get a doctor with expertise in traumatic brain injury and its effect on maturation and education. When retaining an attorney, you want to be sure that that attorney and his/her law firm has the ability to forward the necessary costs and expenses to properly prepare the traumatic brain injury case, to be able to hire all the necessary experts and prepare the case the case for trial.