Proving Your Brain Injury Case Part 2: Teaching the Jury What It Means for You and Your Family
In Part 1 of this series about brain injury cases, I addressed the differences between traumatic brain injuries and anoxic/hypoxic brain injuries and how we can use expert witnesses and other resources to teach the jury about these mechanisms of injury.
In today's post, I am going to lay out how we teach the jury about the everyday and long term implications of a brain injury for injured individuals and their families. As I detail this approach, keep in mind that in teaching the jury about brain injuries we have to remember that 1) brain injuries are not typically apparent simply by looking at some one and 2) many jurors do not think they have ever spent significant time around someone with a brain injury, i.e. many jurors will think that they do not know or understand the limitations faced by someone who has suffered a brain injury. Thus, the methods outlined below are specifically geared toward giving the jury the tools to "see" and understand what the day to day life and long term prospects for a brain injured individual are.
Teaching the Jury the Signs and Symptoms of Brain Injuries and How They Are Present in Your Case
Just like we do with teaching the jury about the mechanism of injury, we use a telling and a showing approach to teach the jury what the signs and symptoms of a brain injury are.
For the jurors that learn by hearing, we have the same doctors who explained the method of injury explain the signs and symptoms of injury. This type of testimony will typically include an explanation for why a given head injury leads to certain limitations. For example, we will have the doctor explain why a concussion with loss of consciousness results in photosensitivity (problems dealing with changes in lighting whether from flashing images during a movie being watched in a dark room or headaches brought on by going outside in bright sunlight after being inside with softer light).
In addition to the doctors who have explained the mechanism of injury, we will also have a neuropsychologist testify. Neuropscyhologists are typically PhD's trained in how the brain works and different ways to test and quantify brain function. The neuropscyhologist will perform several hours of testing on the individual who suffered the head injury. They will use the data gathered during that testing to make a determination as to the level of functioning of the injured person as compared with their level of functioning before the head injury happened. Often times this testimony will be expressed in terms such as "reads on a 3rd grade reading level as compared with the college degree obtained before the injury" or "impulse control comparable to that of a five year old child as compared with the impulse control demonstrated before the injury in the injured person's job as a police officer." The neuropscyhologist's testimony, therefore, allows us to use analogies that jurors are familiar with (impulse control of a child, reading level of an elementary school student) to help understand the devastating changes in the injured person's thinking abilities.
For the jurors who learn by seeing, we can couple the doctor and neuropsychologist's testimony with two things: 1) visual demonstrations of the results of the testing and 2) day in the life videos.
By visual demonstrations of the testing done, I mean we can have the neuropsychologist show the jury some of the actual tests that were performed and, in essence, perform the tests on the jurors. The neuropsychologist can then explain to the jury how the injured individual performed on the given test. This type of testimony can lead to a "eureka" moment for the jurors as they see how slow or impaired the injured client's abilities are in comparison to their own.
Day in the life videos, in the right context, can be just as persuasive and dramatic as the testing demonstrations. For these videos, a videographer and crew follow the brain injured person through his or her day to day life. Depending on the nature and severity of the injury, the video might include footage from occupational therapy visits, doctor's appointment or interactions with round the clock care takers.
After we have presented the testimony, given the testing demonstration and shown the day in the life video, we can then call the brain injured person to testify (assuming that the injury is such that they are able to do so) and the jury, having been trained on the nature of the injury and how it shows itself in the injured person's life, will be equipped to see and understand why the injured person seems a bit "off." The injured person's flat demeanor or apparent difficulty remembering will make sense and, instead of cutting against the injured person's credibility with the jury, will re-enforce the earlier testimony of the experts.
Teaching the Jury The Long Term Implications of a Brain Injury
Having armed the jury with information about the weaknesses in mental function experienced by the brain injured individual and the way those weakness are identified and manifested on a daily basis, we then have to teach the jury what those weaknesses mean in the long run for the injured person and his or her family.
The first tool for explaining long term prospects is a vocational expert. Vocational experts are individuals with professional backgrounds in looking at a given individual's education, background and training and determining what jobs that individual is likely to be able to get and perform in a given community. For example, a vocational expert might look at a person with a high school education, 20 years of experience in the construction industry, no physical or cognitive limitations and who lives in a city where building is booming and determine that that individual will likely be able to get and perform a job building new office buildings for the going rate of that line of work.
In the brain injury context, we will present the vocational expert with the opinions of the medical doctors and neuropsychologists noted above as well as our client's educational and work history. The vocational expert will then take that information and determine what, if any, categories of jobs our client will be able to perform.
For example, we represented a college student who suffered a traumatic brain injury and as a result had problems with light sensitivity as well as with complex reasoning. Despite the client's college degree, the vocational expert determined that the only types of jobs our client was likely to be able to get and perform were entry level clerical work that did not require a great deal of organization or problem solving.
Once the vocational expert has provided us with information based on the medical testimony about the types of jobs our client can perform with his or her injuries, we engage the services of an expert economist, typically a PhD level college professor. The economist will take the information we have concerning the client's pre-injury earnings and/or earnings potential (based on national, regional or local statistics) and compare that level of income to that of an individual working the types of jobs the vocational expert has indicated our client can perform with the limitations of the brain injury. That number is then calculated out over the client's work life expectancy to give us a hard dollar number of the lost income that the client has suffered as a result of the injury.
In other words, the economist tells the jury what the difference in income will likely be for the injured individual over the course of that person's life as a result of the limited job opportunities brought on by the head injury. In the case of our brain injured college student, the economist was able to take the average earnings of a college graduate with the average earnings of someone performing basic clerical work. The lifetime difference in earnings between the two jobs was hundreds of thousands of dollars.
After presenting the jury with information about the injured person's altered job and earning prospects, we can present the jury with testimony from a life care planner. The life care planner is typically an RN or other healthcare provider with experience in pricing and obtaining long term treatment for injured individuals. The life care planner will take the doctors' testimony about the long term care needs for the client and put a price tag on that treatment.
For example, the doctors might testify that the patient will need annual neurology visits, quarterly psychiatric visits (brain injured individuals often experience depression and other psychiatric symptoms) and prescription medications for the rest of the person's life. The life care planner would take this information and price the costs of each type of doctor's visit and medication for the injured person's statistical life expectancy. In other words, like the economist gives the jury a solid number on the lost earnings caused by the brain injury, the life care planner gives the jury a solid number on the future medical expenses brought on by the brain injury.
In sum, teaching the jury about the long term needs and losses brought on by a brain injury is all about taking the medical testimony and applying it to the real world problems of job prospects, losses of income and costs of future medical needs.
Let Us Fight for You
Lawyers handling brain injury cases must have the time, connections and resources to tell the client's story in its enitrety. At the Rocky McElhaney Law Firm, we know how to use doctors, neuropscyhologists, videographers, vocational experts, PhD economists and life care planners to teach the insurance company on the other side of a case and the jury how the brain injured happened, how to tell that it is ongoing and what the long term impact of the injury means for the injured person and his or her family.
If you or a loved has suffered a brain injury, whether a traumatic brain injury in the form of a concussion or a severe anoxic brain injury that requires 24/7 nursing care, call us at 615-425-2500 and let us put our team of professionals and experts to work for you. Rocky McElhaney Law Firm: We Fight For You.