The Preparation and Presentation of a Traumatic Brain Injury Case

By Gary Gober

I have long maintained that the trial of a significant TBI case (and I think every TBI is significant) is as much a spiritual undertaking as it is a purely forensic one.

A traumatic brain injury that results in permanent memory loss, personality change or destruction of the ability to earn a living amounts to the amputation of the soul.  Insurance defense attorneys often wrap their minimization of a brain injury by saying, “So what? She survived, didn’t she?”  But as the great trial lawyer Moe Levine observed years ago, “If all life amounts to is survival, who needs it?”  It is the ability to enjoy companionship, to savor tender moments and cherish precious memories that make life worth living.

All trial advocacy is story-telling. The victim of a brain injury that is caused by someone else’s carelessness is coming before the bar of justice and saying, “I have been deprived of my ability to think, my memories and my earning power.  I ask for compensation.”  Achieving justice for that person is my job and my calling as a lawyer who tries cases.

Allow me to simplify.  In trying a TBI case I employ three paradigms.  One is the INJURY paradigm.  I have got to prove that my client has more likely than not suffered a brain injury.

This requires testimony from experts.  Neurologists will testify to the anatomy of the brain and will show the jury what happens when the brain’s message carriers, called axons, are sheared and torn by the force of a blow or trauma to the head. Modern neuroimaging techniques can show graphically where such shearing has taken place.  Neuropsychologists will tell about the cognitive testing they employ to illustrate the loss of cognitive function as a result of a TBI. A neuropsychiatrist may testify as to the depression resulting from a TBI and the loss of function it entails, depression so deep and dark as to be completely disabling in some cases.

The second paradigm I utilize is the PERSUASION paradigm.  Once the nature and existence of the TBI has been established by vocal, visual and graphic medical proof, I must show the effect such an injury has had on the life of the victim.  The single most powerful aspect of this paradigm is, I believe, the testimony of before and after lay witnesses, not just experts. Who are the people who know the injured person best?  It is here that family, friends, neighbors, co-workers, and supervisors are vitally and decisively important.  They knew the victim before, they see her now, and they can explain the difference they have perceived.  They have no axe to grind, they are simply there to tell what they have observed.  Properly developed, this testimony can be of immeasurable persuasive value in determining the compensation to be awarded the brain injury victim.

Finally, there is what I call the POWER paradigm. It brings the case down to its final ultimate resolution. It’s what the story is ultimately about:  the value of living a human life.

It is here that the advocate must call forth from the depths of his being those thoughts and values that make life more than just “surviving”.  The Bible teaches that we are made “a little lower than the angels”.  The loss of that special something that makes us human, of memories of life experiences, of the joy of smelling the roses, of loving and being loved, of the obliteration of memory and identity, the sense that “I’m not me anymore”.  These harms and losses are what provide the basis for justice, for adequate compensation for the catastrophic  effects of traumatic brain injury.

I will be speaking on this subject at the annual convention of the American Association for Justice in Montreal, Canada this July.  If you would like a copy of my remarks, please email me at gary (@) goberlaw (dot) com, and I will send you a copy.


February 10, 2015

Every year more than two million Americans suffer a traumatic brain injury (TBI)   The majority of these injuries will be diagnosed as “mild TBI”. Between 10-15% of these so-called “mild” TBI injuries will result in some degree of permanent disability.  Those who suffer from these permanent injuries will, on average, die sooner, earn less over a lifetime, and suffer more marital and family instability than the non-injured population.  Their suicide rate will also be higher.

I would urge everyone concerned with  TBI to read Michael Paul Mason’s excellent and  powerful book, HEAD CASES.  You will get a compelling picture of the personal devastation any moderate to severe brain injury can cause in a person’s life. However, even the so-called “mild” TBI  can have catastrophic consequences. The loss of cognitive functioning, memory loss, disruption of personal relationships and the ensuing depression can tear families apart, result in job loss and can cut a person’s potential for achievement.

Our legal system provides compensation for people whose TBI is caused by the carelessness of another:  the inattentive or fatigued truck driver,  the store with a dangerous condition on its floor, or other careless actor.  However it is important to be aware of the  time limitations involved with respect to making a claim for legal copensation for a  TBI.  Here in Tennessee our Statute of Limitations is ONE YEAR from the event causing the injury.

I have written elsewhere that TBI is often a process, not an event.  The full consequences of a brain injury may not become manifest for weeks or months after the injury event. Therefore you  should be aware of the signs and symptoms that may accompany a TBI  so that you can act promptly to protect your rights.These signs may include memory loss, confusion, dizziness, headaches, impulsivity, lability (uncontrolled tearfulness), inability to concentrate and depression.

Ignorance is the greatest enemy of the victim of a TBI. Not knowing the scope and seriousness of the problem inhibits action and can result in the loss of help that, once lost, is lost forever.  Keep reading these blogs to stay informed, proactive and protected!