Article: Proving Brain Injury

This article is reproduced from the South Florida Legal Guide.

Every parent’s worst nightmare is a catastrophically injured child: A tractor trailer, rockets down the roadway out of control, jumps the median and explodes into an innocent family’s mini-van. In the truck’s destructive wake – a crumpled heap of twisted metal - and a 12-year-old girl with severe brain damage.

Surely, this tragic event would horrify any feeling person. Yet, obtaining full compensation at trial for a catastrophically injured person – whether child or adult - demands skilled advocacy. Only stellar representation can ensure that horribly injured plaintiffs obtain the lifetime care that they need and deserve.

When a person suffers brain damage, that person’s life and the lives of their family members are left in shambles. The extraordinary cost of caring for a severely brain injured person would overwhelm most of us. The total devastation to the injured victim and her family is almost too painful to imagine. And, therein lay the central problem for the lawyer who represents a catastrophically injured client.

People do not want to imagine the suffering of others. Indeed, blunting our capacity to experience the tragedy of others is how most people get through each dismal news day. Jurors employ these same defense mechanisms in the courtroom. The judge and defense counsel will help to numb the jurors by telling them not to decide the case based on sympathy or emotion. This dynamic is worse when the client’s injuries make her incapable of communicating and connecting with the jury.

Jurors may find it easier to distance themselves from your client’s terrible plight by accepting common defense arguments that your client contributed to her own injuries, will get better over time or is already receiving most of the care she needs. Finally, jurors can rationalize that no amount of money will make a difference for the plaintiff, so why waste resources?

When confronted with these obstacles to just compensation, what must the advocate do? Overwhelm the other side with dazzling scientific and technical testimony from neurologists, neuropsychologists, economists and life care planners? In part – yes – because jurors need this ammunition to pull the trigger on a large award. Yet, simply posting facts and figures will mean little if jurors experience it as coming from some other world in which they do not live.

The only way to break the barrier is to compel the jury to live in your client’s world. And, the first step is to enter it yourself! Immerse yourself in your client’s suffering in order to tell her life’s story and convey the full magnitude of her loss. Surely, you cannot make others feel what you do not. Nor can you speak for someone who you do not understand.

Next, present evidence that appeals not only to the cerebral but also to the sensory. Use photos, videos, accounts from people who know and love the plaintiff, and a variety of demonstrative aids, as you speak genuinely about your spiritually adopted family so that the jurors will experience the plaintiff’s daily pain with all of their senses. In the end, each juror must see the plaintiff as a wrongfully harmed member of his own family. Only then will a jury render a just verdict, and only then should you - the plaintiff’s attorney – rest.

James A. Hannon