Content copyright . Roger N. Braden. All rights reserved.
In my representation of traumatic brain injury clients and my other community activities dealing with professionals, TBI survivors and their families and the general public, there are 10 questions that come up the most. I am listing those questions from the least common to the most common, and will answer them the best I can.
QUESTION NO. 10: How does an attorney know if you have a brain injury?
QUESTION NO. 9: How much do attorneys charge to represent people in brain injury cases?
QUESTION NO. 8: Do I have a case?
QUESTION NO. 7: Do we have to file a lawsuit in order to be financially compensated?
QUESTION NO. 6: How long does a lawsuit take if we have to file suit?
QUESTION NO. 5: What if I am injured while working on my job?
QUESTION NO. 4: How can I financially survive until I receive monies from a settlement or judgment?
QUESTION NO. 3: Why do I feel like I’m all alone in this situation?
QUESTION NO. 2: What is your experience level dealing with traumatic brain injuries?
QUESTION NO. 10: How does an attorney know if you have a brain injury?
ANSWER: Some brain injuries are so obvious that anybody would know. However, in many cases, such as when the injuries are categorized by the medical profession as “Mild Brain Injury,” the likelihood is the attorney will not know unless the attorney has had medical training. The attorney must rely upon your medical care providers. That is why it is important for the attorney to obtain all your medical records and meet with your doctor(s) to make sure the attorney understands the nature of the injury, the likelihood of you improving from a medical standpoint, what future medical care will be required, what costs have been incurred for your medical care and will be incurred in the future, and how the injury has affected your ability to work and live a normal life. Keep in mind that the only cure for a brain injury is prevention. Also keep in mind that you generally have one shot to be fully compensated for your injuries in the civil tort legal system. Your attorney needs to understand your injuries, the effects of those injuries to you medically and on your life, and have the passion to fight for you to be fully compensated.
QUESTION NO. 9: How much do attorneys charge to represent people in brain injury cases?
ANSWER: Attorneys may charge on an hourly basis or on what is known as a “contingency fee” basis. Either method is acceptable. Most attorneys, myself included, charge on a contingency fee basis. A contingency fee is a fee that is based upon the amount recovered, either at trial or at the time of settlement. The primary purpose of the contingency fee is to make the “courthouse remedies” available for someone who would not be able to pay a competent law firm for its services on an hourly basis. The percentage of the fee may vary based on various factors, such as how strong the case is on the liability issue, or how much costs will have to be advanced in the case. Often times the fee may be 40% or higher, but in my experience most cases have a fee of 33-1/3% of the total recovery, plus reimbursement for expenses advanced to prosecuting the case by the law firm.
QUESTION NO. 8: Do I have a case?
ANSWER: There are two major components in determining whether you have a case. The first component is what is referred to as “liability.” That is, who was at fault? The second component is “are there recoverable damages”?
Fault is defined differently in different states. For example, there can be more than one person or entity at fault and the amount of fault for each person or entity may vary. In some cases, the injured person might be partially or completely at fault. In the case where the injured person was partially at fault, the percentage of fault depending on the state may affect the ability to partially recover or recover at all. The attorney needs to investigate the facts and reach a determination as to how strong your case is based on “fault”. Obviously, in many cases this cannot be done during the initial meeting with the attorney because it requires investigating the facts.
Recoverable damages are damages that you can obtain by law because of someone else’s conduct, or negligence. Recoverable damages differ depending on which state your case is being brought in and if the matter involved injuries or involved a death.
Generally, there are two broad types of damages: compensatory and punitive. Compensatory damages are meant to fully compensate the injured person for his injuries. Damages, such as lost wages and future loss wages, pain and suffering and future pain and suffering, medical bills and future medical bills, and loss of consortium (how the injured person’s spouse or child has been affected by the injuries to the injured person) are examples of compensatory damages. In a death case the damages may be destruction of the earning power to the Estate of the person.
Punitive damages are meant to punish the wrongdoer or to deter the conduct of the wrongdoer to make sure the action isn't done again. So the answer to the question is not as simple as one might think. In some cases the attorney may be in a position to tell you have a case as early as the initial meeting. In many cases, the attorney must do a thorough investigation before the question can be competently answered.
QUESTION NO. 7: Do we have to file a lawsuit in order to be financially compensated?
ANSWER: Not necessarily. You have a period of time to investigate and attempt to negotiate a settlement prior to having to file suit. Depending on what type of case it is, there may be a good likelihood that the case can be resolved without filing suit, some cases more than others. For example, a large number of automobile collision cases are resolved without filing a lawsuit.
On the other hand, a much smaller number of medical malpractice cases are settled without filing suit. In product liability cases, such as claims of defects in automobile or medical products or claims against drug companies, suits are very common. In those cases, and in many other cases, the information you may need to find out the truth about the product or about what happened, may be ascertainable without filing suit to require the information to be provided to you. Also, it is very important to keep in mind that there is what is known as a Statute of Limitations. That means, there is a certain amount of time you have to file a legal cause of action. If you don’t file the case within that period, your case in all likelihood will be dismissed and you will be denied compensation for your injuries.
QUESTION NO. 6: How long does a lawsuit take if we have to file suit? How does an attorney know if you have a brain injury?
ANSWER: It depends. Each case varies depending on how complex the case is; which state or courtroom you are in; how many defendants and plaintiffs are involved in the case. There are essentially three parts to a lawsuit: The first part is that you file the lawsuit, known as the Complaint, and each person sued, files a response to your allegations. The Response is generally known as that defendant’s “Answer”. The third part is the “trial”. A trial may last a day or several weeks, or longer, again depending on the complexity of the case. It is the second part, known as “discovery,” that creates the major problem in trying to estimate how long the lawsuit will take. The “discovery” part is the actions taken by the attorneys trying to find all the pertinent facts about the case. I’ve had cases involving obtaining discovery from countries, such as
QUESTION NO. 5: What if I am injured while working on my job?
ANSWER: You should notify your employer and report the injury immediately. You should strictly comply with the employer’s NOTICE policy. If you do not recall what the policy is, or did not read it at the time of your hire, I recommend you go back and review it. Knowing your employer’s policy regarding NOTICE and providing your employer with prompt notice of your injury should assure that your worker’s compensation benefits will be timely processed. In many situations, if your injury resulted from your employer’s conduct, you may only have a worker's compensation claim. In other situations you may have claims in addition to a worker's compensation claim.
I recommend you consult with a competent worker's compensation attorney as soon as possible after the injury has occurred regarding your rights. In many states your worker's compensation claim benefits are limited to a portion of your lost wages and your medical bills. In
QUESTION NO. 4: How can I financially survive until I receive monies from a settlement or judgment?
ANSWER: There is no easy answer to this question. If you are injured on the job, there may be some monies coming to you through your worker's compensation benefits. These monies should pay your medical expenses related to the work-related injury and may provide you with a portion of your lost wages. If you are involved in an automobile accident, at least in Kentucky, you may be able to receive ”no-fault” benefits up to the amount of the benefits in you insurance policy (basic no-fault benefits is generally $10,000.00). No fault benefits generally cover medical bills, a portion of your weekly income and replacement costs as defined by the statute.
Additionally, if you are eligible, there is Medicare-Medicaid and you may have some type of disability policy privately or through your employer or may be entitled to social security benefits if you are disabled. The reality is that in many, many cases none of these benefits will put the injured person and his or her family in the same position they were in before the injury occurred. That is why the civil justice system is so important. Your best shot at being made as whole as possible is having the person or entity responsible for your injuries compensate you for the damages caused by their conduct. In a great number of cases, the hard reality is until the injured are fully compensated they may find ways to survive, but their lives will not return to normal.
QUESTION NO. 3: Why do I feel like I’m all alone in this situation?
ANSWER: You are not alone, but it is normal to feel that way. Only the person injured truly experiences all that he is going through with his injury. There are several things to consider and several reasons for hope. First, you are not the only one to go down this road.
Second, reaching maximized recovery from a traumatic brain injury may take a long time and requires a lot of patience. Listen to what your doctors are telling you and ask about rehabilitation programs that will help you get to the next level of recovery.
Third, recognize and rely on your resources for support: family members, friends and others who care about you.
QUESTION NO. 2: What is your experience level dealing with traumatic brain injuries?
ANSWER: First, I want to tell you that traumatic brain injury issue is a very personal issue with me. My first experience with a traumatic brain injury was when I was about 10 years old and had a cousin die after suffering a spinal cord/brain injury sustained in an automobile accident that occurred the night he graduated from high school. About 24 years ago one of my nephews suffered a very serious head injury in an automobile accident and over time I witnessed the consequences of that injury not only on him, but his family. Shortly after that incident, my brother and nephew, were involved in an motorcycle accident and both sustained head injuries. In the late 1980’s my wife’s brother, a Professor at
Second, I have dealt with traumatic brain injuries either from a medical standpoint or from a medical-legal standpoint, as a “medic”, nursing student, registered nurse working in trauma or an attorney since about 1971. During that time I have seen traumatic brain injuries in every category and have come to understand not only the acute stage of care, but also the sub-acute and post-acute stages of care required for many of the injuries and the effects the injury has on the person and his family. We have been successful in many cases by resolving the cases to assure the injured persons and their families have funds available in the future to assure proper medical care and income, as well as a comfortable lifestyle from a financial standpoint.
Third, as an attorney, I have represented and evaluated dozens and dozens, if not hundreds of cases involving acquired brain injury and traumatic brain injury survivors and their families over the past 26 years. In 2007 I co-founded the Northern Kentucky Annual Traumatic Brain injury Conference. Also in 2007 I incorporated the Northern Kentucky Brain Injury Support group BRIDGES (Brain Injury Demands Guidance & Support) and currently serve on its Board of Trustees. For the past 2 years I have served on
QUESTION NO. 1: Why should I hire you?
ANSWER: You should hire whomever you want to hire. I would recommend you ask the following questions in making your decision:
(1) Does the attorney and his firm have the experience regarding the type of injuries I have?
(2) Does the attorney have an understanding of the nature of my injuries?
(3) Does the attorney have a passion for what he is doing?
(4) Is the attorney a person that I have a comfort level with in communicating about my case?
(5) Does the attorney have the support of his Firm and is he willing to fight as hard as he can for me?
Although your question is a good question, in my view almost anything else that an attorney would tell you in response to your question would simply be a sales pitch. The decision as to who you hire to represent you is one of the most important decisions you will make and should not be reduced to which attorney has the best television commercial or the best sales pitch.
