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TBI Cases: Why Do So Few Personal Injury Lawyers Take Them?

Categories: Legal Issues, Living with Brain Injury

by Steven Gursten
Michigan Auto Law
It’s astounding how many personal injury lawyers avoid helping people with mild traumatic brain injury. Often, these lawyers are reluctant to take TBI cases because they know that they lack the experience and medical sophistication to achieve a successful result.
 
That doesn’t mean these lawyers aren’t still signing TBI cases. Just that they aren’t taking them to trial. And that means many are being settled for far less than full and fair value.
 
Traumatic brain injury cases are difficult cases. They are also expensive. They are harder to settle because they are often fiercely contested by the insurance companies. These are not the type of case that an attorney can jump into and learn as they go.
 
The only type of lawyer that should even consider trying these cases is one with extensive brain injury litigation experience, which, of course, is acquired only through extensive education, in-depth study, working with expert litigators, second-chairing trials, and then first-chairing trials with an expert as your second-chair. Without the credible threat of trial backed up by real trial results, the insurance companies won’t offer full and fair value. This leads attorneys to settle TBI cases for less than they are worth, and that in turn leads the insurance companies to keep making low settlement offers combined with a more aggressive defense.
 
The common denominator here is the plaintiff personal injury lawyer who signs up these cases but without the medical knowledge and willingness to take these TBI cases to trial.
 

To be able to evaluate your lawyer’s ability, here are the important questions that a TBI survivor should ask before hiring an attorney to represent them:

  • How long have you been helping TBI survivors?
  • Have you been successful in recovering verdicts and settlements that provide brain injury survivors with the compensation and medical care they need?
  • What seminars and education programs have you attended, or better yet, taught, that deal with the medical and legal issues of a traumatic brain injury case?
  • Do other lawyers look to you and refer to you based on your expertise with TBI litigation?
  • What is the “defense playbook” in these cases? For example, how do you handle the defense claim that nearly all mild brain injuries fully resolve within months?
  • How do you handle the defense claim that an accident victim cannot suffer a TBI if they look “normal” and have normal X-rays, CT scans and MRIs?
  • I have heard that insurance companies defend TBI cases more aggressively because they are harder to prove and to win. What is it about your experience and results with TBI cases that will protect me from being under-compensated for my traumatic brain injury?
Brain injury lawyer Steven Gursten is the immediate Past-President of the American Association for Justice’s Traumatic Brain Injury Litigation Group. He lectures across the country to personal injury lawyers and car accident lawyers on how to prove and win these cases at trial.
 
Steve has received the highest recorded jury verdicts and settlements for traumatic brain injury cases over multiple years, including a $5.65 million jury verdict and a $4.2 million jury verdict on insurance company offers of less than $100,000.