In representation of traumatic brain injury clients and other community activities dealing with professionals, TBI survivors and their families, and the general public, there are 10 questions that are most frequently asked. Below is a listing of those questions from the least common to the most common and my answers to them.
How does an attorney know if you have a brain injury?
ANSWER: Some brain injuries are very obvious to the observer. In many cases however, a brain injury can be categorized by the medical profession as “Mild Brain Injury” cases. In these cases, it is likely that the attorney will not recognize the brain injury unless he has had medical training. Attorneys therefore, must rely upon the evaluations of medical care providers. It is important for the attorney to obtain all of your medical records and meet with your doctor(s) to ensure the attorney understands the nature of the injury, the likelihood of your improvment/recovery 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 chance 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.
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. 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.
Do I have a case?
ANSWER: There are two major components in determining whether you have a case. The first component is referred to as liability or “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 cases 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 the state in which your case is being filed and if injury or death is involved.
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, future pain and suffering, medical bills, 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 deter the conduct of the wrongdoer to make sure the action isn’t repeated again. The answer to the question therefore, is not as simple as one might think. In some cases, the attorney may be in a position to assess that 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.
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, it is likely that the case can be resolved without filing suit. This holds true for 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 defective automobile or medical products claims or claims against drug companies, suits are very common. In those cases, and in many other cases, obtaining the information you may need concerning the product or what happened, may be ascertainable without filing suit. Also, it is very important to keep in mind the Statute of Limitations, which means there is a certain amount of time you have to file a legal cause of action. If you fail to file the case within that period, it is probable your case will be dismissed and you will be denied compensation for your injuries.
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 the complexity of the case, which state or courtroom you are in, and how many defendants and plaintiffs are involved in the case. There are essentially three parts to a lawsuit: First, you file the lawsuit, known as the “Complaint.” Each person sued then files a response to your allegations. The Response is generally known as the defendant’s “Answer”. Third, is the “trial”. A trial may last a day, several weeks, or longer 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. “Discovery” consists of the actions taken by the attorneys to try and find all the pertinent facts about the case. I’ve had cases involving obtaining “Discovery” from countries, such as England, Finland, Mexico, Canada, and most of the states in the United States. The more complex the “Discovery”, the longer the case will take to get to a jury. While there is no magic time period in which a case gets concluded, many lawsuits will go to trial 1-2 years after the lawsuit is filed. While each case can be appealed, the majority of cases are not. The more complex cases may take several more years, even if they are not appealed.
What if I am injured while working on the job?
ANSWER: You should notify your employer and report the injury immediately. Strict compliance with the employer’s NOTICE policy is mandatory. If you do not recall what the policy is, or did not read it at the time of your hire, you should 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.
Regarding your rights, I recommend you consult with a competent worker’s compensation attorney as soon as possible after the injury has occurred. In many states, your worker’s compensation claim benefits are limited to a portion of your lost wages and your medical bills. In Kentucky and Ohio, there are no claims for pain and suffering and spousal loss of consortium in a worker’s compensation claim. If you are permanently disabled or are partially disabled, you may have long-term benefits for these disabilities. If you are injured while working in the scope of your employment, and your injuries were caused due to the conduct of a third party (someone other than your employer), you may have a cause of action against the third party, in addition to any claims you have against your employer. A competant personal injury attorney should be contacted as soon as possible after you are injured.