Litigation versus Claim Counsel

For personal injury cases, with the exception of medical malpractice, the typical statute of limitation is 2 years in Nevada. That means one must file a lawsuit within 2 years from the date of the injury. So unless a claim is fast approaching the statute of limitation deadline, a lawyer will notify a potential defendant about a claim hoping to get the insurance company for the insured-defendant to fairly negotiate a resolution. However, in real life, fair negotiation never happens and lawsuits are filed close to the expiration of the statute date.

Insurance Companies know this and use it to their advantage. Some lawyers hire “trial counsel” to take the case over if they are unable to settle it prior to filing the lawsuit. This may be in the best interest of the client if the attorney does not have the resources or skill to bring the case to trial. Many lawyers make a practice of signing up clients knowing they will never try the case hoping they will settle it before the filing deadline.

This can have an adverse interest on the client who relies on the attorney to do the best she can to obtain the best result. What ends up happening is that if the attorney cannot settle it he “sells the case” to a trial lawyer for 1/3 of the fees obtained. If you stop and think about it, if the client hired the trial attorney to begin with, that attorney would be able to earn a full fee rather than splitting it with the non-trial attorney. The the old adage, “You get what you pay for.” Most certainly the trial attorney will still do his best to get his 2/3 fee BUT is it really fair to give the referring lawyer anything if his best effort was hiring someone you could have hired directly? Probably not.

Preparation for Trial

Further, even though insurance companies know which lawyers are prepared to take a case to trial by what they do to prepare it, bringing in the “big guns” later in the game sends a message to the insurance company that you are going to trial. Once they see this they realize their misevaluation is going to go up or risk a jury verdict.

Serious lawyers want to create and maintain a serious impression with defense lawyers, insurance companies and defendants that they are working toward a trial date. For me, that means filing a lawsuit as soon as preliminary investigation is complete. That should be within the first 2- 3 months. By then you should know the clients’ veracity, the medical, wage and loss of life values, as well as the probable future medicals, wage and life costs. And just as importantly, if you conduct meaningful investigation early on you will know the liability status of the case (who is at fault). All of this investigation costs money but is well spent.

Start the Wheels of Justice Early

The wheels of justice turn slow. My motto is to get them turning as quickly as ethically possible. At the same time waiting the permissible 2 years to file a lawsuit could not only waste time getting to a recovery but, worse, forever lose important evidence to lost witnesses and the like.

The statistics of whether you will have to step foot in a courtroom are fractional. Since more that 90% of all lawsuits settle before ever reaching the courthouse, you should ask the lawyer you are considering for representation about that. My answer is: I always prepare a case as if we are going to trial. That is the only way the other side will take anything we say seriously. That includes settlement discussions and any alternative dispute resolution that we may enter in to.

When you interview a prospective lawyer, make no mistake, you are interviewing her more than she is interviewing you. She is trying to decide if it makes business sense to take your case. How much can she make? You are evaluating her integrity; will she get into my suffering with me and help me though it? Getting you to the right care givers, truly listening and understanding what you are going though. You have the right to say “no” too. During these initial meetings you should ask what and how she is going to proceed; how long things will take; who pays for what and when will those payments begin and for what?

While you may never face the inside of a court room you may face formal proceedings like depositions or compulsory medical evaluations. You may have to disclose and answer questions about very personal things that do not appear relevant. Your lawyer needs to have enough time in her day to calmly and completely go over these matters with you in detail. And finally, establish in your initial meeting how often you can expect direct contact for an update on all documents, hearings, Orders and other significant matters. In my office I meet with each client at least 1 time every 2 months to go over detailed proceeding. This is in addition to communications that occur on an as needed basis.

Communication

I find this communication not only keeps me and the clients updated on their case, but clients look forward to getting all the documents to go over to see what activities are taking place. This results in far fewer questions when we talk. My goal is to give my client a sense of understanding and control of this part of their life. This is especially true when other parts of his life may be out of control.

I will talk more about the goings of being in court, but for now I meant to cover what you should learn initially from your lawyer about court and your personal injury claim.
 

THE HOLLYWOOD MYTH

We all accept the things we see in movies and on television.  That is the hope and intent of their creators.  However reality and fantasy, or at least make-believe, are not the same.  We need to be reminded that fact and fiction are not the same!

Traumatic Brain Injury

Traumatic brain injury will occur when the soft tissues of the brain are pushed against the boney structures of the skull in whiplash type, acceleration/deceleration movements. The inside of the skull is riddled with sharp ridges especially around the eyes.

The problem with most of us is we are desensitized to the impact of trauma and brain injury due to what we watch every day on television or in the movies. This is called the Hollywood Myth.

Most people’s knowledge and experience with the result of mild head injuries is largely the product of movie magic. Some of the funniest scenes in slap stick comedies and cartoons depict the character sustaining a single or multiple head injuries, looking dazed and then recovering immediately. In cowboy movies, detective and action stories, and boxing and kung fu films, seemingly serious head trauma is often inflicted by blows from guns and heavy objects, falls, motor vehicle injuries, fists, and kicks, all without lasting injury.

Our Experience

Our experience is minuscule compared to the thousands of simulated head injuries witnessed in the movies and on television. Because of the compelling mythology, the lawyers and physicians have a difficult job educating patients, their families, and others in the realities of mild head injuries. However, when one looks at examples of two successful boxers, Joe Lewis and Muhammad Ali, they have witnessed powerful punches resulting in dazed, disorientated boxers or knock outs. Memory loss and dementia have been a frequent finding in ex fighters.

Boxing and other Repetitive Injury

“Mild head injury typified by momentary amnesia, brief loss of consciousness, and persistent headache or mild neurological signs is more difficult to document than severe or moderate head injuries. In an analysis of 1,165 bouts: researchers found that 79% of boxers had momentary neurological signs, whereas 21% demonstrated deficits for at least 24 hours.”

And our favorite sports, football, hockey, baseball all involve serious, repetitive head injury which take their toll on athletes both now and later in life.

Television & Movies

Recall Laurel and Hardy, Abbott and Costello and the Three Stooges, all slapping each other and making us laugh. We laughed because we knew the injuries were fake; But not so in real life.

We all cheered James T. Kirk when he engaged in hand to hand combat either knocking his opponent out or being knocked out himself, only to return apparently healed and well in the next scene.

Today’s movies continue the tradition of distorting the truth about head and brain injury. And we are all caught up in it. We are conditioned to believe a little punch or two cannot really do any permanent damage. Then we see Natasha Richardson suffer a seemingly minor head injury while skiing, go on about her day, and die hours later from brain injury.

Education

Education is the key.  Occasionally, a documentary or science channel special runs a series or show on brain injury, but it is our responsibility as parents, and engagers of everyday risk to know the difference between fact and fiction.
 

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THAT WAS THEN THIS IS NOW 

Once someone sustains a traumatic brain injury, life changes.  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 person’s 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. Acceptance and Creativity are key. Once a person accepts they have new physical difficulties with emotion, cognition components, they can then begin by creatively overcoming them.

Impairments of Traumatic Brain Injury

The 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.  These become manifest due to difficulties with concentration, attention, information processing, irritability and fatigue that is often associated with traumatic 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
11. Sexual Intimacy

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 a person who would like to believe there is no injury will point out. People like insurance adjusters, defense attorneys and experts who get paid by the defense. In other words, they submit, 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.

Impairment Of All Skills Not Necessary to Diagnose Traumatic Brain Injury

However any competent neuropsychologist will tell you that it is not necessary to flunk all tests in a battery to be diagnosed with brain injury. In fact, since all brains and injuries are unique to each person, it is not likely that all test results will be reveal impairment. This is to be expected.
My job is to relate all the data, use all professional and expert evaluations, and expose the misinformation insurance companies create with their manipulation of the data.
 

The first step to understanding the American Justice System as it may apply to your claim for injury is determining the remedy sought. The first level of Justice separates criminal and civil Actions.

A criminal action seeks to incarcerate or limit an individual’s freedom. Hence, trial results in a person paying a fine and possibly going to jail. These claims are typically initiated by a government body - city, state or Federal - asserting its interest on behalf of the public, to force or prohibit certain acts of a person. Criminal actions are not typically brought by an individual who has been wronged by another’s particular act. However. many criminal actions have civil components to them. As in the OJ Simpson case, a criminal jury acquitted (found no fault) OJ, and a civil jury found Mr. Simpson liable for a specific amount of money to the family of the dead defendant.

A civil action is typically initiated by a wronged individual against another individual or business. This trial results in money remedy for the plaintiff or potential costs of the lawsuit for a defendant if plaintiff loses. Jail or other limitations of freedom are typically not included.

A civil claim begins when one party seeks compensation from another party. Those parties are “plaintiff” and “defendant.” There are many types of civil actions. Contract and property disputes including employment, real estate, patents and many others fall under a category which takes up the greatest portion of legal dockets. These disputes can involve individual consumers against other individuals or large corporations against other large corporations. Corporate litigation uses a lot of court resources and often gets special treatment when it involves a particularly large specific issue.

Civil claims include family law, divorce, and a host of other areas. Personal injury law is another area of civil, rather than criminal, law. Here, individual versus other individual, as in car accident cases, are pursued. Individual consumer versus business is also a common claim. Think of the Louisiana fishermen claims against British Petroleum regarding the 2010 oil spill. Civil personal injury claims involve a plaintiff suing a defendant for money damages.

However personal injury law has been further subdivided over the years since American Jurisprudence began to include categories like 18 Wheeler Truck Injury, Traumatic Brain Injury, Medical Malpractice, Defamation, and others. The reason for these subdivisions is the level of subspecialty involved.

For example 18 wheeler, or semi tractor and trailer Truck injuries involve an entire set Federal regulations specifically created in response to the industry’s propensity to lack safety protocol. These regulations are constantly being updated.

Traumatic Brain Injury cases involve very particular scientific and medical knowledge which is also being updated regularly as technology and medical science progress.

Medical Malpractice is interesting since many states have attempted to regulate a consumer’s ability to access justice for those injuries by setting limits on how claims are made. Knowing how to maneuver the legal path in these case often requires ever changing rules.

Many consumers of the justice system seek criminal type penalties against people or businesses that they perceive were responsible for injuring them. This, however, is the job of the state or other government body whose interest is stopping criminal behavior. Still, in personal injury (civil cases) this differentiation is lost. The Burden of Proof for a criminal case is higher than for a civil case – and for good reason.

When a Judge takes away a person’s freedom of movement by putting them in jail, a jury must be very sure the evidence supports that result beyond a reasonable doubt – close to 100%. However when a jury in a civil case finds money damages for one party, it does so under a preponderance of the evidence standard – more than 50%, or more likely than not.

So if a jury finds a person 51% likely to have committed a crime – it should not find against that person criminally – no jail time. But if a jury finds a person 51% likely to have been negligent, or at fault, even if by accident, it should find against him and in favor the plaintiff.

I have been practicing personal injury civil law for over 20 years. Sometimes there is a criminal component to personal injury cases. When there is, a prosecuting (government) attorney pursues it. While its outcome may be of great importance to the injury (civil) claim, it is a separate matter. On the other hand, not all personal injury claims have criminal components as when a party does not intend for an injury to happen. As they say, “sometimes accidents happen.” However even in those unintended incidents, for example a car crash, someone’s error caused it.

 If you or someone you know has been injured due to someone else’s fault, you do not want to rely only on the criminal lawyer who works for the government to represent your personal interest. They simply do not. You should speak to an attorney you select since he or she will protect your best interests as to your personal claims.

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Brain injury comes in many shapes and sizes. The proverbial “one size fits all” does not apply. Although there are many similar characteristics with most brain injuries they are not all the same. For instance, brain injury often results in short term memory loss and difficulty processing information. How that emerges between individuals varies but often it is seen at work and in social situations. Often the difficulty requires more energy for processing information and results in fatigue.

Depression is common both from the injury itself and psychologically as a result of the affects of the injury. This is especially true in cases of mild and moderate traumatic brain injury when those around you simply have difficulty believing you are suffering when you look otherwise normal. This adds to the frustration, anxiety and irritability.

If you have been in a traumatic event that caused a concussion and brain injury, you may wonder about the value of the legal case. A legal case value depends on many things other than the injury and its affects. Many people do not understand this. Sometimes an injury can be worse in one case but valued lower than another case with a lesser injury. On the other hand, too often cases with a higher value are settled for less because the person making the evaluation does not understand brain injury. Since traumatic brain injury typically results in difficulty making decisions, it is a good idea to have someone you trust help you find a lawyer.
Finding the right lawyer is critical to getting a proper verdict or settlement. Lawyers have different interests and talents. Long ago lawyers could be general practitioners handling wills, business matters, divorce and criminal matters. Today the law is very specialized. That is, what a lawyer spends most of his time doing is what he is best at. If your lawyer handles one or two brain injury cases a year, he is not a good choice to handle your injury. If your lawyer’s practice is devoted to over 90% brain injury cases, you’ll have a much better outcome.

The first thing to understand is all lawyers are not made the same. And just like other folks, if a lawyer untrained in brain injury does not see an injury on standard diagnostic tests or by simple observation, they are not likely to believe it exists. On the other hand, if your lawyer is versed in how mild and moderate traumatic brain injury affects victims, they will know where to look and how to maximize the value.

Traumatic Brain Injury typically has medical costs associated with care in the past and in the future. Determining what the future costs are likely to be is important in valuing the case. Likewise, past lost earnings from being out of work are simple enough to calculate, but what about the loss of future earning capacity? This is very tricky since a person with brain injury may be able to do a job but staying consistently employed is an entirely different matter. Again, unless your lawyer has extensive experience on how and why a brain injury can cause loss of future earning capacity, she may sell your case short.

There are many other things to consider when hiring a lawyer and that is why you should seek out assistance from someone you trust; your spouse, parent, child, relative, or good friend. You should not simply take the advice of someone who tells you about a lawyer they used in a case. That lawyer may be a very talented divorce lawyer but that is not what you need. Your friend’s lawyer may even be personal injury lawyer, but that does not automatically qualify her as a brain injury specialist. Personal injury lawyers rarely limit their practice and research to traumatic brain injury. You are entitled to hire a lawyer that does.

I wrote an article entitled a Guide to Selecting a Lawyer in a Traumatic Brain Injury Case. I attempt to guide non-lawyers in choosing a qualified lawyer to handle their case. Much of what I propose are simple questions that you have a right to ask. Lawyers who profess skill in handling traumatic brain injury cases typically have blogs they publish. For instance my blog is entitled Brain and Spine Injury Law Blog. You may want to research your lawyer’s web site as well.

With the help of a trusted companion, look up organizations like the Brain Injury Association of America (BIAA), www.biaa.org. Visit their site on the internet or call them and ask for a referral to a lawyer in your particular state. There are organizations whose purpose is to assist victims of brain injury. Consult them rather than simply relying on the recommendation of a friend who may mean well but does not understand the nuances of brain injury.

These organizations will also assist you in getting the right care and treatment in your area. Most hospital emergency rooms do not treat or even diagnose mild or moderate traumatic brain injury, so you will benefit by talking to folks who understand. Other groups include individual State Brain Injury Associations, and the North American Brain Injury Society (NABIS), www.nabis.org.

Not only will these organizations assist you in getting help, they provide literature and videos to help explain what you are experiencing and how treatment can help.
If you or someone you know has suffered traumatic brain injury, please accept my best wishes and prayers for a maximized recovery. I hope something I have shared here will assist you in your journey.

Timothy Titolo copyright 2010
 

I graduated from Hofstra University, New York in 1983 with a degree in accounting. I went to work for an international accounting firm in Tulsa, Oklahoma during the booming oil days of the 1980s. I later enrolled at Tulsa University Law School and graduated in 1988.

I moved to Las Vegas, Nevada and started work with a large insurance defense firm. After a couple of years I ventured out on my own representing plaintiffs in personal injury cases. Very soon afterwards I developed a specific interest in representing victims of traumatic brain injury and spine injury.

I successfully handled many cases involving amounts exceeding a million and several million dollars. I learned about the special suffering traumatic brain injury brings to its victims. And not only the victims but the families as well.

I have served on various Brain Injury Associations and as Board Member of the Traumatic Brain Injury Litigation Group of the American Association for Justice. I have been invited numerous times to lecture and present to groups of doctors, lawyers, rehabilitation providers and others around the country on topics relating to brain injury.

I am also active in the American Association of Justice Motorcycle, Motor Vehicle, Premises, Inadequate Security, and Trucking Litigation Groups. I participate with the North American Brain Injury Society and Brain Injury Association of America on planning committees and conferences.

I started the Brain and Spine Injury Law Blog several years ago to address topics relating to science, medicine and law. I began a podcast in 2010 to compliment the blog. I hope that the blog and podcast will be interesting and useful to readers.
 

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