How to Choose a Lawyer and What to Expect from the Legal Process

by Ira Sherman, Esq., Managing Partner
Chaikin, Sherman, Cammarata & Siegel, P.C.

Clients with brain injury present a unique constellation of symptoms; no two people are alike. Some may have problems with memory and concentration, some have lost their sense of taste, and some have difficulty with word recall, just to name a few. Wrongdoers and their insurance companies often fail to understand the devastating impact of these injuries. It is essential to hire competent counsel to help persons with brain injury navigate through the claims process and court system. This article discusses how to choose a lawyer and what to expect during the different stages of a case involving brain injury.

Choosing an Attorney

Choose an attorney with experience in brain injury to help you navigate the complex legal system and ensure proper compensation. Experienced attorneys should be brought into the process as soon as possible so they can help deal with insurance companies and gather evidence before it becomes unavailable.

Consulting attorney rating services, friends and family, and the Brain Injury Association of America’s Preferred Attorneys program will help you find highly qualified attorneys with experience resolving cases involving brain injury.

Once candidates are identified, set up meetings with selected attorneys and a close friend or family member. The close friend or family member should be prepared to take notes as it is common for individuals with brain injury to have difficulty remembering meeting details.

Ten Questions to ask While Meeting with a Lawyer:

• What is your prior experience in cases in which your client sustained a brain injury?
• Are you recognized or rated by any lawyer rating services or surveys? 

Note: Local magazine’s “Top Lawyer” surveys, nationally known surveys such as “Superlawyers,” and Martindale Hubbell “AV” ratings are some specific rating services and surveys to inquire about.

• What prominent positions have you, or other lawyers in the firm who you might be working with, held with national or local brain injury organizations?
• Have you held prominent positions in local bar associations that demonstrate that you are respected in your field?
• Are you and your firm recognized as Preferred Attorneys by the Brain Injury Association of America?
• Are attorneys in your firm Board Certified by any Trial Specialty Boards and will they be working on the case?
• How many lawyers are in the firm, and who will be working with you on your case?
• Are your cases exclusively those that involve a personal injury, and do you exclusively represent the injured parties?
• How does your attorney’s fee work?
• Can you explain the retainer agreement to me?

Note: Retainer agreements discuss the terms of a lawyer and their client’s professional relationship.

The Early Stages of the Case

A brain injury can be life-altering for a person and his or her family. No one is appropriately prepared for the impact on everyday activities and the strain on relationships that can result from a brain injury. Individuals with brain injury frequently do not recognize changes in concentration, thinking, and mood caused by the injury. Therefore, if you are injured, you should seek medical attention as soon as possible. Not only does this begin the treatment process and the long road to recovery, but it also documents the injury through medical records, which will eventually be available for the insurance company and for a jury, if necessary, to evaluate the nature, extent, and duration of your injury.

Follow-up medical care must also be sought. This can include appointments with physicians such as neurologists, trauma surgeons, neuropsychologists, physiatrists, and other medical professionals such as physical therapists, occupational therapists, and speech language pathologists. Family members may also want to seek the services of social workers and psychologists. The follow-up care is necessary treatment and further documents the nature, extent, and duration of the injury.

What other actions can you take?

• Report the incident to first responders.
• Gather information including contact and driver’s license information from all those involved (including witnesses), photographs of the incident scene, the vehicles involved (if any), and any visible injuries.
• Work with law enforcement; make sure to get officers’ badge numbers and contact information.
• Create an organization system for medical bills, photographs, and other documents that may be useful to you or your attorney.
• Check your insurance policy to determine the amount of your available insurance coverage.
• Create a journal; a written account of the effects of brain injury can be a great tool to show the impact of an incident on persons with brain injury and their family members.

Tip: In motor vehicle accidents, you may be required to promptly report the accident to your insurance company, but you should avoid talking to any representative of anyone who caused or contributed to your injury, including representatives of another person’s insurance company. An experienced attorney can handle communication with insurance companies on your behalf.

The Lawsuit

Attorneys attempt to resolve every claim without filing a lawsuit. Because brain injury is often complex and has multi-faceted effects on a person’s life, insurance companies lack the ability to properly evaluate the claim. It is often better for clients to go forward with their claims by filing lawsuits because they, their doctors, and their family and friends are often the best at explaining the nature, extent, and duration of the injury.

A lawsuit begins when the victim’s attorney files a “complaint” with the court that sets out the allegations against the wrongdoer. The victim is the plaintiff in the court case. The plaintiff’s attorney serves the complaint on the alleged wrongdoer, who is the defendant in the court case. The defendant is required to answer the allegations by admitting or denying them and can also assert other defenses. As the plaintiff and the defendant learn more information concerning the facts of the claim, they may engage in settlement negotiations.

The next stage of the litigation is the discovery process. Discovery is a process in which the parties in the lawsuit are able to conduct factfinding to better understand the issues and evidence in the case. Discovery can include the following:

• Interrogatories, which are written questions one side asks of the other. Questions concern topics like the circumstances of the incident, the nature of the injuries, past medical issues, and how the plaintiff performed in his or her job and at school, both before and after the incident.
• Requests for the Production of Documents, which ask the other party to provide documents related to the claim. These requests include things like medical records, school records, proof of income (if there is a lost wage claim), and photographs of the scene of the incident.
• Both fact witnesses and expert witnesses are identified. Fact witnesses are people who have personal knowledge of the circumstances of the case. Expert witnesses are people recognized by the court as authorities on specific topics with knowledge beyond that accessible to the average person. Oftentimes, expert witnesses will prepare written reports detailing their expertise and their expert opinions about the facts of the case. Treating physicians are often identified as expert witnesses.
• Depositions, which allow each party to question the other party and potential witnesses who must answer under oath. Depositions afford attorneys an opportunity to analyze the credibility and likability of witnesses.
• In a case where a plaintiff sustained a brain injury, the defendant’s lawyer will often request that the plaintiff be examined by a doctor of the defense attorney’s choice. The plaintiff may need to appear for the examination.

Settlement or Trial

After the discovery process, it is very likely there will be settlement negotiations. Often the parties will agree to submit the case to mediation, which is a settlement conference, where the parties will meet and attempt to resolve their differences. If settlement discussions are not successful, the parties and their lawyers will thoroughly prepare for trial. Choosing an experienced trial lawyer who has a good track record and excellent reputation will provide you with the confidence to say no to an unfair settlement offer and proceed to trial.

The legal process can be time-consuming, and it will require effort. It can at times be frustrating, especially for individuals with brain injury. However, hiring the right lawyer is the first and most important step to ensure you will be able to navigate the process successfully.

We hope no one ever needs to hire a personal injury attorney for a brain injury-related claim. Nevertheless, if you have a brain injury, we hope this article provides helpful guidance on what to look for when choosing your lawyer and what to expect as you attempt to resolve your claim.

Ira Sherman is the Managing Partner of Chaikin, Sherman, Cammarata & Siegel, P.C., a Washington, D.C. law firm that is widely recognized as one of the area’s leading advocates for individuals who were injured due to the carelessness of others. Mr. Sherman is licensed to practice law in the District of Columbia, Maryland and New York. He is an active member of the American Association for Justice and a member of their Traumatic Brain Injury Litigation Group. He is a former president of the Trial Lawyers’ Association of Metropolitan Washington, D.C. and a member of the Board of Directors of the Brain Injury Association of America. Mr. Sherman was included in the list of Washington, D.C. Super Lawyers every year since 2011, was named to the “Top Lawyers” in Washington, DC in the 2018 edition of Washingtonian magazine’s “Top Lawyers” list, and has consistently received an “AV Preeminent” rating, the highest possible rating awarded by the Martindale-Hubbell Directory of Attorneys.

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This article originally appeared in Volume 13, Issue 2 of THE Challenge! published in 2019.