KPM Law Blog

Cost of Defending Underinsured Motorist Cases Shifted – Section 38.2-2206 Amended Effective July 1, 2010

Wed, 21 Apr 2010 20:38:00 GMT

House Bill 93 was enacted by the Virginia General Assembly, signed by Governor McDonnell, and becomes the law on July 1, 2010. It adds a new provision, Section “L”, to Va. Code Ann. §38.2-2206, and shifts the costs of defending an insured. The relevant part of the statute reads as follows:

L. If the liability insurer or insurers providing coverage to an underinsured motor vehicle owner or operator make an irrevocable offer in writing to pay the total amount of liability coverage available for payment with reference to a claim for property damage or bodily injury, 60 days following written notice of the offer to any insurer or insurers providing underinsured coverage that have been served pursuant to this section, the insurer or insurers providing liability coverage shall be relieved of the cost of defending the owner or operator incurred thereafter, including expenses as well as reasonable and necessary attorney fees, and the insurer or insurers providing the underinsured motorist coverage shall reimburse the liability insurer or insurers for the costs to defend the underinsured motor vehicle owner or operator to the date of the underinsured motorist insurer's offer of its limit of coverage. The liability insurer or insurers shall nonetheless retain the duty to defend their insured. If underinsured motorist coverage is provided by more than one insurer, the cost to defend shall be assumed in the same order of priority as set forth in subsection B with regard to the payment of underinsured benefits upon the offer of each underinsured motorist insurer's limit of coverage. This subsection shall not apply in the event of either a jury verdict being returned in an amount equal to or less than the total liability coverage available for payment or a dispositive ruling dismissing the plaintiff's complaint. This subsection shall not apply to costs incurred in connection with an appeal.

Under the current law, a case with value that exceeds the available liability limits can still be forced to trial and a resultant judgment by a UIM carrier that either does not participate in the litigation, or does not make an offer acceptable to the plaintiff.

Under the new version of the Uninsured Motorist Statute, a UIM carrier that does not settle a case must “reimburse” a liability carrier for defense costs and expenses incurred 60 days after the liability carrier offers its limits to the plaintiff. The bill uses the term “reimburse”, and the duty to defend remains with the liability carrier.

These are key components for attorneys defending liability cases. Through use of the word “reimburse”, and retention of the duty to defend by the liability carrier, defense counsel retained by the liability carrier will likely continue with their customary case handling practices. Defense counsel will submit its legal bills and costs to the liability carrier that retained him or her, and provide the liability carrier with whatever reporting requirements it desires. The liability carrier should continue to pay defense counsel and then submit legal bills and expenses to the UIM carrier for “reimbursement.” This framework should prevent defense counsel from having to accept different rate structures and reporting requirements imposed by the UIM carrier.

Selecting a Burn Injury Lawyer

Sat, 17 Dec 2011 12:54:00 GMT

The three “must do’s” when selecting a burn injury attorney to handle your burn injury case are:

Make sure to HIRE A DAMN GOOD LAWYER!
Make sure your burn injury LAWYER UNDERSTANDS THE COMPLICATIONS OF BURN INJURIES and the long term needs of burn injury victims
Make sure your burn injury LAWYER HAS THE STABILITY AND FINANCIAL RESOURCES to fund burn injury litigation

MAKE SURE YOU HIRE A DAMN GOOD LAWYER!

Burn injuries are caused by many different things. There is not one type of burn injury case. While your burn injury is the result, the causes of the burn injury are varied. To illustrate this point with real world examples, here is a summary of a few burn injury cases I have litigated over the years in Virginia:

Gas tank rupture – A meter maid was operating a three wheeled vehicle when she rounded a curve a flipped over. The gas cap dislodged and fuel spilled into the passenger compartment of the vehicle where the driver was trapped. Heat from the engine ignited the gasoline and an intense fire ensues, badly burning and disfiguring the driver.

Smoke detector failure – A rental house caught fire in the middle of the night. The smoke detector did not alarm. One occupant was awakened by the flames and escaped. The second occupant was disoriented by the smoke, but eventually made her way to the front door. Unfortunately, the front door was dead bolted and no key was in the lock. The flames trapped her and she was found badly burned, huddled in a corner by the locked door.

Power line electrocution – A man was painting his tin roof with a roller on an extension pole. When he drew back to bring the roller closer, the pole contacted the overhead power lines carrying 18,000 volts of energy. The man literally had both arms and both legs dislodged from his body on contact before he fell from the second story roof onto the ground.

Roofing glue ignited by welding spark – A roofer was applying highly flammable glue to a rubber membrane roof. A welder was working on the same project nearby. A welding spark ignited the glue vapors and a fire/ explosion broke out around the roofer badly burning him.

Convenient store explosion – A gasoline tanker truck was filling the UST’s of the store. The UST’s were vented alongside the store building just above the roof line. During an earlier remolding of the building a facade was installed at the roof line to hide it, which unfortunately trapped the fumes on the roof. Someone went in the store’s bathroom and activated the exhaust fan. Gasoline vapors are heavier than air, so they sunk into the bathroom and eventually filled the store. The cashier rung up a sale and a massive explosion occurred blowing the occupants through the store windows and into the parking lot.

Scalding bath water – A babysitter drew a bath of water for an 8 year old boy. As the boy was disrobing while sitting on the edge of the tub, he slipped and fell in. A new hot water heater had been recently installed in the apartment complex and the hot water setting was improperly set at too high. The boy was instantly scalded and suffered serious burn injuries.

So, you see that your burn injury attorney must first be a damn good lawyer, experienced in handling many complex cases. How do you figure that out? One way to find out if you’re on the right trail is to search the lawyer on Martindale.com. Martindale-Hubbell has been rating lawyers for years and is recognized in the legal world as the unbiased source for lawyer evaluation. It reports how other lawyers and judges rate the lawyer. An AV Peer Review Rating is the highest rating and reflects that the lawyer has reached the height of professional excellence, has practiced for many years, and is recognized for the highest levels of skill and integrity. To compliment Martindale-Hubbell I recommend you review the lawyers personal CV, or resume. Do they appear to have the experience you want? Are they a member of the Million Dollar Advocates Forum, which indicates they have successfully represented a client in a case where they obtained at least a one million dollar result? Last, interview them. Ask tough questions. Not only are their answers important, but you have to like them. If you don’t like them then odds are a jury won’t either.

UNDERSTANDING THE COMPLICATIONS OF BURN INJURIES

I have seen over and over again lawyers who simply focus on the fact that the clients skin is burned as the basis of their claim and not the other, often more critical, aspects of the burn injury. Wound infection, scar and skin contracture management, respiratory limitations, amputations, sensitivity to light and household chemicals, etc, make a burn injury victim’s life unique. Make sure your burn injury lawyer understands this. Make sure your burn injury lawyer has experience dealing with this.

Here is an example of one such thought process that should be second nature to your burn injury attorney: If the burn injury victim has lost an ear or nose, are prosthetic devices available? If so, how long will they last? Will the victim need three or four new ones throughout the course of their life? What other procedures, now and in the future, must the victim undergo to prepare for them? Will posts need to be installed to receive the prosthetics? Will the posts ever need to replaced or adjusted? Are the risks of infection too great? What are the projected costs of all of this now and over the course of the victim’s life? Will the costs be more in 5 years, 10 years? What amount of money do I need today to guarantee these costs are covered throughout my client’s lifetime, and has a qualified Economist or Accountant confirmed the figures?

The same analysis holds true for prosthetic limbs, plastic or reconstructive surgery, home modifications, wheel chairs, respiratory management, psychological counseling, etc. Many, many factors need be considered before knowing the full financial impact that a burn injury will have on the life of a burn injury victim. Your burn injury attorney must know how to supervise a full and comprehensive life care plan for you to assure financial security as you recover and live a productive life. Your burn injury attorney must know how to manage your medical and recovery team.

STABILITY AND FINANCIAL RESOURCES

This is last in order, but certainly not least. The worst thing for your burn injury case is a lawyer who does not have the business stability and financial resources to do everything necessary on your case, and the ability to stand toe to toe with big insurance companies and businesses who will try and outspend you. It will generally cost thousands of dollars to properly investigate and litigate a burn injury case. The main reason is that burn injury cases are expert heavy. By that I mean that expert witnesses are needed to prove how and why a burn injury occurred. The plaintiff, or burn injury victim, has the burden of proving who is responsible and why. Unless it is freely admitted, which is extremely rare, experts need to be hired to prove the case. Oftentimes multiple experts are needed. Engineers, Life Care Planners, and Doctors are a few necessary members of the burn injury victim’s team in almost every case.

So what do you ask the burn injury lawyer? Three things. 1) How long has your firm continually been in business? 2) Are you prepared to advance all costs and expenses necessary to successfully prosecute my case? 3) Do you have proof that you have the financial ability to do that? 4) Will you advance all costs throughout the case and deduct those from my recovery when the case concludes? 5) Do you have malpractice insurance? 6) What is the amount of your malpractice insurance and may I have a copy of the declarations page of your policy confirm it?

These questions will not be offensive to a seasoned and qualified burn injury lawyer. The malpractice insurance question is critical to ask. Not all states require lawyers to have malpractice insurance. Not all lawyers who have malpractice insurance have enough. Example: What happens if you a three million dollar case. Your lawyer makes a simple mistake and your case is lost. Your lawyer freely admits his mistake and tells you to make a claim against him, which he will not contest. You do so and find out he has a one million dollar insurance policy……… ASK THE QUESTIONS!

Wrongful Death

Sat, 17 Dec 2011 12:55:00 GMT

The death of a loved one as a result of another person's wrongful act is always a sudden and traumatic event. It is incredibly emotional and stressful for those who have been left behind. The last thing that you want to think about while going through this difficult time is ensuring that your loved one's family members are adequately compensated for their loss. That is why it is extremely important to choose the right attorney to represent you in making a wrongful death claim.

Wrongful death cases are very emotional which is why it is important to have a wrongful death attorney who can explain the nature of the claim in very objective, legal terms and who knows what kind of recovery the family members can expect. For example, I have had many clients think that in a wrongful death lawsuit they are entitled to recover an amount of money that represents the value of the decedent's life. However, under Virginia law, the recoverable damages in a wrongful death lawsuit are actually those money damages designed to compensate the surviving family members for their loss. For example, under Virginia law, beneficiaries are entitled to receive compensation for their sorrow and mental anguish, the loss of companionship, comfort and advice as a result of their loved one's death, and the lost income of their loved one in addition to funeral and medical expenses incurred. What a fair and just amount is in any given case varies greatly depending on the circumstances of the case. An experienced wrongful death attorney knows what facts and circumstances can effect the value of the client's claim and can provide advice to the client as to what amount a jury would likely award under the circumstances of each individual case.

Additionally, the legal aspects of a wrongful death case can be extremely complex which is why it is important to choose a wrongful death attorney with experience who can navigate these legal issues for the client. Even before a lawsuit is filed, the attorney needs to determine the beneficiaries who are entitled to recover under the law, who the responsible party or parties are who caused the decedent's death, what the limitations period for filing the lawsuit is, in which court the lawsuit should be filed, and whether there is any available insurance coverage.

Then, once a lawsuit is filed, the litigation process becomes extremely involved. I have handled several wrongful death cases where it took many months, many hours of legal research, hours of deposition testimony and multiple hearings before the Court before it could even be determined whether the beneficiaries had a right under the law to sue the party whom they felt was responsible. For example, if the wrongful death occurred at work, there is no right of recovery against an employer other than obtaining worker's compensation benefits. Once it is determined that such a right to sue exists, it needs to be determined whether the responsible party will likely be found liable to pay damages by a Court of law and if so, the amount of damages that can be proven. This process can take months of investigation and will very likely entail the employment of experts with various areas of specialty. Some experts who may be needed depending on the case are engineers, accident reconstructionists, economists, accountants, medical experts, and biomechanical experts. An experienced wrongful death attorney will be able to determine what evidence needs to be established at trial to secure a recovery for the client and what experts are needed to help establish and interpret that evidence.

The right wrongful death attorney, like the attorneys at Kalbaugh, Pfund & Messersmith, will not only be capable of skillfully handling all of the complex legal issues associated with the client's wrongful death claim to ensure the most fair and just recovery possible, but will also be extremely sensitive to the individual client's needs during this emotional and stressful time.

Traffic Violations

Sat, 17 Dec 2011 12:56:00 GMT

In my experience, it pays to have an experienced traffic violation attorney in court to protect your interests. As an attorney familiar with the various courts in the metro Richmond area, I can let my clients know, for example, whether it worth fighting a particular speeding ticket or just pre-paying the fine. Many times, my potential clients feel that they might be better off to simply pay a traffic ticket rather than incur the costs of hiring a traffic attorney. However, they often are unaware that certain moving violations can lead to suspension of their driver’s license and an increase in their automobile liability insurance premiums. Depending on the type of charge and the court, it is sometimes possible to have a charged reduced to a non-moving violation. Non-moving violations often carry lesser fines and usually do not lead to an increase in insurance premiums.

I regularly consult with persons charged with traffic tickets ranging from simple speeding to more serious offenses such as DWI/DUI, reckless driving and driving on suspended driver’s license. Did you know that, in Virginia, driving your car in excess of 80 miles per hour is reckless driving, a class one misdemeanor carrying a possible jail sentence of up to one year and suspension of your driver’s license? Did you know that failure to pay a traffic ticket or carry liability insurance can lead to a suspension of your driver’s license? Driving on a suspended driver’s license is also a serious misdemeanor offense and a conviction can lead to possible jail time. However, depending on the specific facts of the case, there are technical defenses to these charges that may be used to your advantage.

As an experienced traffic violation attorney, I also help my clients through the rules of evidence and criminal procedure. While most traffic offenses are misdemeanors, the strict rules of evidence and criminal procedure still apply. Many of my clients and friends have complained that they went to court on a traffic ticket to defend themselves but were upset that the court would not consider certain letters, repair bills, or statements of witnesses due to objections from the prosecuting attorney. A traffic attorney can make sure that the evidence you need is properly brought before the court to insure the best possible result at your trial. Sometimes, these technical rules of evidence can actually be used to your advantage to exclude evidence against you! I can remember numerous cases where my client and I thought that there would be a conviction and we went to court to request a reduced sentence but had the entire case dismissed due to an evidentiary problem with the prosecutor’s case. Just about everyone I know has received a traffic ticket at some point in their lives and then asked me questions about their court experience after they went to court alone. I always tell them, next time, give me a call before going to court! If you have questions about your traffic ticket, do not hesitate to call KPM before your court date.

What To Look For in a Personal Injury Attorney

Sat, 17 Dec 2011 12:57:00 GMT

Million dollar television and radio campaigns, a celebrity spokesman, and huge yellow page ads give you very little information about the skill and qualifications of a particular personal injury attorney. In fact, some of the best personal injury attorneys do not advertise at all. Instead, they get their cases from referrals by other attorneys and prior clients. So, how do you weed through all of the gimmicks and glossy advertisements to find a good attorney who will maximize your recovery after you’ve suffered a personal injury?

Look for an attorney who specializes in personal injury cases.
Personal injury law is complicated. You should find an attorney who devotes his or her practice to personal injury law, rather than someone who dabbles in these types of cases. If you are lucky enough to find an attorney who began his or her practice defending insurance companies then you are way ahead of the game. Insurance defense attorneys know what insurance companies look at when they evaluate personal injury cases. They know how to get a case moved through the insurance company’s various levels of review done before any settlement offers are made, and they have established relationships with insurance adjusters. Once an insurance defense attorney begins handling claims on behalf of the injured person, they are usually very well equipped to get the most compensation for an injured person’s claim. Essentially, these former defense attorneys take the knowledge they have gained by working for the insurance companies and use it to maximize the recovery for the personal injury client.

AV Rated by Martindale Hubble.
Choose a law firm and/or attorney that is rated by Martindale Hubble. Martindale Hubble is a legitimate and respected legal publication that rates lawyers and law firms based on the results of questionnaires completed by lawyers. The ratings are based on an attorney’s reputation, skill, and results as judged by other attorneys. An AV rating is the highest possible rating and reflects that a lawyer and/or his law firm is well-respected by the legal community.

Experience, a Good Communicator, and Someone You Like.
Next, conduct an interview of the prospective personal injury attorney. A personal injury case can take several years from the date of your injury until the conclusion of your case. You will spend a lot of time communicating with and putting your faith in an attorney who will guide you through the insurance claims handling process and the litigation process. So, you should try to find someone that you like and who is a good communicator. The attorney should have years of experience in handling cases just like yours. Don’t be afraid to ask how many cases the attorney has handled and how many have gone to trial versus settled. Most personal injury cases settle. But, you want to make sure you have someone who is capable of taking the case to trial if it is necessary.

Personal attention.
Finally, you should look for an attorney who will handle your case on a day to day basis. The law firms with multi-million dollar advertising campaigns generally have many more cases than individual lawyers can handle. That means that you case will likely be managed by a paralegal or legal assistant. You may never have any contact with an attorney at the firm. To avoid this situation, look for a personal injury attorney who is selective about the number and types of cases he or she accepts. You should have access to your attorney at any time and you should be given the name and phone number of any support staff who will be working on your file.

Insurance Fraud

Sat, 17 Dec 2011 12:57:00 GMT

A lawyer shall not “present or threaten to present criminal or disciplinary charges solely to obtain an advantage in a civil matter.” Virginia DR 3.4(h).   The DR’s, Discliplinary Rules to the rest of civilized society, govern lawyer conduct. This particular Rule exists because the stigma associated with criminal or disciplinary charges could override a person’s desire to pursue a rightful claim for civil relief. But, when does advising an adversary of the potential ramifications of his actions cross the line to threatening criminal charges?

An attorney can advise his own client to pursue criminal charges against an adversary. The typical situation arises with the bounced check. Filing suit against a party bouncing a check leaves your client with a judgment and a lot of draconian, time consuming debt collection measures. Advising your client that bouncing a check is a crime and suggesting to your client that he take the bad check to the Commonwealth’s Attorney does not involve threatening an adversary and probably gets better results than a civil suit. Faced with criminal charges, the check bouncer may pay up quicker or have Court-ordered restitution as part of his sentence.

But, how does this ethics rule impact an insurance fraud investigation? For instance, in Virginia, all claim forms must contain a statement that “it is a crime to knowingly provide false, incomplete or misleading information to an insurance company . . .” Va. Code Ann. §52-40. An Examination Under Oath (E.U.O.) transcript that an insured must sign, correct and notarize may fall into the undefined term of “claim form” so, at some point, this warning must show up. Does the examining attorney verbally advise the insured on the record of this statutory language or slap a sticker with this language on the outside of the transcript when sent to the insured for signing?   Is the attorney “threatening criminal prosecution” in violation of the Disciplinary Rule in either instance?

Advising an insured of statutorily required language does not violate the letter of the rule. The attorney citing this language is not threatening “solely to obtain an advantage in a civil matter.” An attorney need only to point at the statute for support for his purpose. The attorney should explain why such language is put in the record by citing the relevant statute.

Often, after an insurer denies a claim, the adjuster demands that the attorney report the fraud to the proper authorities. The attorney can report the crime of insurance fraud. Reporting the crime involves communication to the authorities and not a threat directed towards the insured to gain an advantage in the claims investigation.

But, the American Bar Association actually suggests that such behavior may be acceptable. In Ethics Opinion 90-363 the ABA determined that the Model Rules allow an attorney to threaten criminal charges to gain an advantage in a civil matter if the criminal charges relate to the civil matter, the attorney has a “well-founded belief” that both the civil and criminal charges have a reasonable basis in the law and facts of the case and the attorney does not try to improperly influence the criminal end of the case. In fact, the ABA even allows settlement terms to include an agreement not to report criminal conduct. The ABA makes sure to say in this Opinion that this is just their “opinion” and that everyone needs to consult their local laws and Disciplinary Rules for how to act ethically.

Under the ABA “opinion,” pushing a Claim Withdrawal form towards an insured and suggesting that jail time is likely unless the claim is withdrawn is acceptable. The Virginia State Bar, however, would find such conduct reprehensible and would take the threatening attorney to task, as well they should. Insurance claims, indeed all claims, should be resolved on its merits, not by inducing fear in an insured through heavy-handed threats.

Commercial Litigation

Sat, 17 Dec 2011 12:57:00 GMT

Over the years, I have handled thousands of cases in Virginia, Maryland, West Virginia, and Washington DC for various corporate and commercial clients, ranging from countless Fortune 500 corporations to local business with one location. Regardless of whether the cases involve retail or restaurant clients, construction defect claims, or products liability cases, the issues and concerns that consistently arise on the defense side are markedly different from the issues that influence the plaintiff. Whether the case is in the Mid-Atlantic region or anywhere else across the country, it is critical that the corporate brand be protected on a grand scale, and that the proprietary interests of the company by closely guarded.

Managing discovery is often the most challenging and important part of a defending a corporate client. Not only can the disclosure of sensitive documents threaten corporate secrecy, but discovery requests can often be costly and time consuming if not properly controlled. This becomes even more of an issue with the new federal rules on electronic discovery. It is critical that defense counsel understand what information his client has readily available, and what resources are required to respond to certain requests. Defense counsel must be vigilant and timely in filing objections, yet reasonable enough to work with opposing counsel to limit the scope of discovery to reasonable parameters without forcing costly and unproductive discovery disputes. At the same time, counsel should have a standard practice of labeling, identifying and producing documents under protective orders to track their production and ensure that sensitive documents do not make their way into the public domain. The last thing I want to see happen is the private operating procedures or policies of my client in a case in Richmond be posted on the internet or shared with another attorney handling another case in Fairfax or Roanoke. While the specific fact patterns in falling merchandise cases, slip and falls, defective product displays, and food borne illness cases always differ, the underlying policies and procedures of a company are typically general enough that the same corporate policies in one case may be at issue in another case. Therefore, it is critical that defense counsel take appropriate action to protect those documents and ensure that they are not duplicated or kept beyond the period required by litigation.

On another level, the frequency of litigation is also an issue to consider. Whereas an individual may go through their entire life only being involved in one lawsuit, a corporation may find itself in litigation hundreds of times in a calendar year. Because of the regular appearance in the court process, a corporation faces much greater potential of impeachment from taking inconsistent positions in any given case. One of the worst things that can happen in litigation is to have what was testified to or provided in one case to be used against the corporation in another case. In essence, the corporation may impeach itself by taking inconsistent positions in different cases. If a corporate designee testifies on a topic in a deposition in Norfolk, Virginia, it is critical that his testimony not expose the company to an argument in litigation in Maryland, West Virginia or anywhere else. Therefore, defense counsel must ensure that the proper designee selected, that he or she is fully prepared to testify, not just based on the issues of the instant case, but based on how his or her testimony may affect another case. Certainly, protective orders can play a large role in minimizing this risk, but practically, it is a much more difficult to control a deposition transcript than a corporate document that is provided by counsel.

In the end, while defending the plaintiff’s claim is always the significant factor in successfully defending a corporation, defense counsel must not defend one case at the risk of increasing exposure in another case. Having defense counsel who understand such nuances and are sensitive to the needs of a corporate client helps make the difference in capable and exceptional defense counsel.

Brain Injury

Sat, 17 Dec 2011 12:58:00 GMT

Traumatic brain injuries can have devastating consequences for its victims and their families. The severity of brain injuries can vary greatly ranging from very severe brain injuries causing coma or even death to mild traumatic brain injuries or concussions that may result in temporary symptoms of short-term memory loss or problems with focus and attention. Although some traumatic brain injuries are classified as "mild," they can actually have significant, and sometimes permanent, effects. The problem is that many symptoms associated with MTBI are subtle and therefore, many people who have suffered this type of brain injury go undiagnosed. Typically, people who have suffered from a MTBI or concussion will have very short periods of a loss of consciousness or no loss of consciousness at all. In addition, traditional diagnostic testing such as CAT scans and MRI's will generally not show the subtle changes of the brain that occur with MTBI's. Because there is frequently no "objective" medical evidence of a MTBI, brain injury litigation most often centers around cases where a victim suffers a MTBI rather than a more severe and obviously debilitating brain injury.

Many people with mild brain injury may suffer from a multitude of symptoms including short-term memory loss, loss of focus and attention, depression, irritability, anxiety, headaches, problems with hearing, problems with language, confusion, balance difficulties and other physical, cognitive and behavioral changes. These symptoms can cause people to lose the ability to function normally, both from a professional and a social perspective. Because of the possible devastating effects of such an injury, and the difficulty in "proving" during the course of brain injury litigation that a very real injury exists, it is important to obtain thorough evaluations, treatment plans and rehabilitation from a variety of health care providers with different areas of specialty. Typically, plaintiffs who have suffered mild traumatic brain injuries will be evaluated by a neuropsychologist who will do a battery of tests to determine the areas of cognitive and psychological deficits. Plaintiffs will also be evaluated by medical doctors such as physiatrists, neurologists or neuropsychiatrists who can diagnose the injury, determine the effects of the brain injury and develop an appropriate treatment plan. Plaintiffs also may need the assistance of physical therapists, occupational therapists, speech therapists, audiologists, vocational counselors and others depending on the extent of the deficits and the symptomatology. Many of these experts will be needed to provide opinions and testimony at trial in order to establish the existence of the injury, the effects of the injury and the cause of the brain injury. It is also very important to show how the plaintiff has changed as a result of the brain injury. This can be established through the testimony of friends, family members and co-workers who have noted changes in the plaintiff's behavior since the injury.

During the course of brain injury litigation, defense counsel will thoroughly investigate the plaintiff's injury claims by delving into the plaintiff's prior medical and psychological history, academic background, employment background, etc. Defense counsel will also hire their own experts to examine and evaluate the plaintiff and to provide opinions as to the nature and extent of the plaintiff's injuries. The plaintiff may have to submit to one or more lengthy evaluations by a neuropsychologist, neurologist, psychiatrist, or other medical doctor or doctors. The plaintiff may also need to be interviewed by vocational counselors regarding his or her capacity to work.

Brain injury litigation is complex and can sometimes be very time consuming, stressful and expensive. However, given the severity of the potential consequences of such an injury, it is important to have an experienced brain injury attorney who is familiar with the medical and legal issues involved in brain injury litigation to assist an injured victim in getting the appropriate treatment he or she needs and in thoroughly preparing the case to ensure that the victim obtains the recovery that he or she deserves.