Closing Statements: Traumatic Brain Injury

Daniel S. Chamberlain

Cohen & Malad, LLP

One Indiana Square, Ste. 1400

Indianapolis, Indiana 46204

Office: 317-636-6481

Mobile: 317-549-5454

CLOSING STATEMENTS: Traumatic Brain Injury (TBI)

Indiana Continuing Legal Education Forum (ICLEF)

1.  The Basics.

Rule

Choice

Harm

A call to motivation …. (A jury will never do anything if you can’t motivate. Why should they?)

Own it. As my Mom said (and she is incredibly smart even for a Northwestern graduate …) you get a lot more from honey than you do vinegar. Life gives a lot more benefit if you are nice. Just ask my Mom. She’ll tell you. 

         David Ball authored a terrific treatise on trying cases. He stated that no lawyer has actually won a case. The facts and clients win cases, not us. Likewise, lawyers do not lose cases either. However, it is imperative to frame the case along the rule, choice and harm continuum.

         Jurors must be armed to win a case. If jurors do not have the ammunition to win the case, it will simply not happen. A juror that speaks on your behalf or against your case will typically not back down. It is important to arm your juror advocate. 

         What sells? Simply one liners that jurors will follow. 

         >Look before you cut.

         >A hit does not stop.

         >A gift that never quits.

         >The worst harm never stops.

         >Pain is simply … a lifelong issue.

Why are we suing? That is the important issue. Jurors are skeptical about all lawsuits, especially yours. It is critical to set forth why a lawsuit was filed and a juror is dedicating their time, talent and treasure to a request for justice.

Jury Instructions? Certainly critical and will be the basis of a verdict and appeal. Explain each instruction, show each instruction and educate the jury on how to complete each instruction. Instructions are the only law that the jury will follow. 

Harm. Without demonstrable harm, a jury will not be compelled to yield a reasonable verdict. 

Ball’s suggested frame work is as follows:

A. We are suing for the following reasons …

B.  The first reason we are suing ….

C.  Briefly summarize the wrong that was done and the harm caused.

D. Briefly summarize what the Defendant should have done, and failed to do. Always emphasize that the Defendant was in control of the choice to follow the law, rule, industry or simply common sense and failed to do so.

E.  Summarize what good would have been achieved but for the harm.

When discussing harm, it is imperative to re-direct the narrative. When someone is arguing a defense theme, a potential juror must be re-directed to the theme. The trial theme is the most important tool to win a case.

Each jury instruction must be covered. In reality is incredibly difficult to do so given the constraints on time in closing argument. 

Another great suggestion from a jury consultant is to not rehash the evidence. It simply does not help win the case. Simply fall back to the rule … “don’t cut what you do not see.”

When discussing harm, always differentiate any prior harms. All too often in cases, especially brain injury, there are other insults that caused harm. Own it. Check out the NFL and their ownership of the concussion and brain injury crisis. There will never be another case of its type … ever.

Story. Identify the story. My Dad is a Board Certified Radiologist and Chief of Staff of a major hospital. That story is not made up, but each client has a story. It is our responsibility to identify and clarify the story, identify the story and tell the story. Not only will your client appreciate you figuring out the story, but telling the story. It is simply important. I recently settled a difficult case in Lima, Ohio. How? I sat down with the courthouse maintenance worker on his day off and he told me about my client … they were best friends and I never knew it. 

I have been blessed to represent some really great folks. Think about a very brief “cocktail party” story about your client. You can certainly do it … and, probably do it already. The jury will remember it. When I look back about the things I am most proud of, it is LaRandi and my NFL clients. For LaRandi, I was able to get a new wheel chair, a walker (by they way, they were pink!) and helped with her new playground in West Virginia. If that is not a compelling story, nothing is. The NFL players … will be covered for the next 65 years. They are simply terrific.     

We also need to address the physical, emotional, mental and other damages. Harm and causation must be covered. Also, the helps and fixes, treatments, surgeries, care and other help to address harms caused. 

In brain injury cases we typically see life care/vocational plans. The defense will argue, in part the following:

A.  The Affordable Care Act will pay for the medical expenses.

B.  Brain Injury should not get any worse in the future.

C.  The client looks “fine”.

D.  Client’s life expectancy is in question.

E.  Senior citizen … well, stuff happens.

F.   How much money does someone really need to live?

A jury does not know the law. Jury instructions help a bit, but the reality is that the consensuson whether you win or lose was long rendered prior to closing argument.

What can we do? 

Focus groups. The best way to determine damages and liability is to arrange a test group of potential jurors. In almost of my cases, I arrange a focus group. I will handle liability, damages and the “ick” factors involved. Sometimes I will do more than one focus group in a day, and do them for other lawyers. There is a lot to be said about having an outside person looking at the case. Want to talk about it, just give me a shout. 

One of the realities is that there are simply so few cases that are being tried. Ask for help. I always do and have worked some of the best and brightest in the legal field. 

2.  What is a traumatic brain injury?

TBI is defined as an alteration in brain function, or other evidence of brain pathology, caused by an external force.   

Technologic advances in magnetic resonance imaging and the development of biomarkers offer potential for improving diagnostic accuracy in these situations. 

The understanding that both milder insults and less typical presentations not fit under the TBI diagnostic umbrella has increased the overlap with non TBI pathologies. 

A. An alteration in brain function is defined as 1 of the following clinical signs: 

1.              Any period of loss of consciousness. 

2.              Any loss of memory for events immediately before or after the injury. 

3.              0Neurologic deficits, including weakness, loss of balance, change in vision, dyspraxia paresis/plegia [paraplegia], sensory loss, aphasia, etc. 

4.              Any alteration in mental state at the time of injury. 

However, we need to recognize that clinical manifestations may be delayed. 

B.   Or, other evidence of brain pathology: Such evidence may include visual, neuroradiologic, or laboratory confirmation of damage to the brain. 

C.  Caused by an external force, that may include any of the following events: 

1.              The head being struck by an object. 

2.              The head striking an object. 

3.              The brain undergoing an acceleration/deceleration movement without direct external trauma to the head. 

4.              A foreign body penetrating the brain. 

5.              Forces generated from events such as a blast or explosion. 

6.              Or, other force yet to be defined. 

Archives of Physical Medical Rehabilitation, 2010-91: 1637-40, Volume 91, November 2010. 

3.  What are the Potential Effects of TBI?

NOTE: In other words, use the Centers for Disease Prevention Governmental publications for all they are worth.

The severity of a TBI may range from “mild,” i.e., a brief change in mental status or consciousness, to “severe,” i.e., an extended period of unconsciousness or amnesia after the injury.

TBI can cause a wide range of functional short- or long-term changes affecting thinking, sensation, language, or emotions.

·        Thinking (i.e., memory and reasoning);

·        Sensation (i.e., sight and balance);

·        Language (i.e., communication, expression, and understanding); and

·        Emotion (i.e., depression, anxiety, personality changes, aggression, acting out, and social inappropriateness).1

TBI can also cause epilepsy and increase the risk for conditions such as Alzheimer’s disease, Parkinson’s disease, and other brain disorders that become more prevalent with age.1

About 75% of TBIs that occur each year are concussions or other forms of mild TBI.2

Repeated mild TBIs occurring over an extended period of time (i.e., months, years) can result in cumulative neurological and cognitive deficits. Repeated mild TBIs occurring within a short period of time (i.e., hours, days, or weeks) can be catastrophic or fatal.3

General Tips to Help Aid in Recovery:

·        Get lots of rest. Don't rush back to daily activities such as work or school.

·        Avoid doing anything that could cause another blow or jolt to the head.

·        Ask your health care professional when it's safe to drive a car, ride a bike, or use heavy equipment, because your ability to react may be slower after a brain injury.

·        Take only the drugs your health care professional has approved, and don't drink alcohol until your health care professional says it's OK.

·        Write things down if you have a hard time remembering.

·        You may need help to re-learn skills that were lost. Your health care professional can help arrange for these services.4

What are the Potential Effects of TBI?

Chronic Traumatic Encephalopathy

There is growing attention and research on the potential effects and risks for Chronic Traumatic Encephalopathy or CTE. CTE is a degenerative condition linked to repeated head injuries. First identified in the 1920s, CTE is associated with difficulties with thinking, physical problems, emotions, and other behaviors. CTE can currently only be diagnosed after death and is identified through studying sections of the brain. In April 2013, the National Institutes of Health (NIH) launched a major program to advance research to better understand CTE, its causes, and how to diagnose it among living persons. To learn more about NIH research efforts, visit the NINDS Traumatic Brain Injury Information Page.

To read a report from the Consensus Meeting on CTE hosted by NIH, go to the Report from the First NIH Consensus Conference to Define the Neuropathological Criteria for the Diagnosis of Chronic Traumatic Encephalopathy.

The severity of a TBI may range from “mild,” i.e., a brief change in mental status or consciousness, to “severe,” i.e., an extended period of unconsciousness or amnesia after the injury.

TBI can cause a wide range of functional short- or long-term changes affecting thinking, sensation, language, or emotions.

·        Thinking (i.e., memory and reasoning);

·        Sensation (i.e., sight and balance);

·        Language (i.e., communication, expression, and understanding); and

·        Emotion (i.e., depression, anxiety, personality changes, aggression, acting out, and social inappropriateness).1

TBI can also cause epilepsy and increase the risk for conditions such as Alzheimer’s disease, Parkinson’s disease, and other brain disorders that become more prevalent with age.1

About 75% of TBIs that occur each year are concussions or other forms of mild TBI.2

Repeated mild TBIs occurring over an extended period of time (i.e., months, years) can result in cumulative neurological and cognitive deficits. Repeated mild TBIs occurring within a short period of time (i.e., hours, days, or weeks) can be catastrophic or fatal.3

For information on how to prevent TBI and the potentially serious effects from this injury, please visit our TBI Prevention page.

CDC’s HEADS UP campaign also includes steps to help protect children and teens from concussion and other serious head and brain injuries both on and off the sports field. Learn more at HEADS UP's Brain Injury Safety Tips and Prevention page.

General Tips to Help Aid in Recovery:

·        Get lots of rest. Don't rush back to daily activities such as work or school.

·        Avoid doing anything that could cause another blow or jolt to the head.

·        Ask your health care professional when it's safe to drive a car, ride a bike, or use heavy equipment, because your ability to react may be slower after a brain injury.

·        Take only the drugs your health care professional has approved, and don't drink alcohol until your health care professional says it's OK.

·        Write things down if you have a hard time remembering.

·        You may need help to re-learn skills that were lost. Your health care professional can help arrange for these services.4

What are the Potential Effects of TBI?

Chronic Traumatic Encephalopathy

There is growing attention and research on the potential effects and risks for Chronic Traumatic Encephalopathy or CTE. CTE is a degenerative condition linked to repeated head injuries. First identified in the 1920s, CTE is associated with difficulties with thinking, physical problems, emotions, and other behaviors. CTE can currently only be diagnosed after death and is identified through studying sections of the brain. In April 2013, the National Institutes of Health (NIH) launched a major program to advance research to better understand CTE, its causes, and how to diagnose it among living persons. To learn more about NIH research efforts, visit the NINDS Traumatic Brain Injury Information Page.

To read a report from the Consensus Meeting on CTE hosted by NIH, go to the Report from the First NIH Consensus Conference to Define the Neuropathological Criteria for the Diagnosis of Chronic Traumatic Encephalopathy.

The severity of a TBI may range from “mild,” i.e., a brief change in mental status or consciousness, to “severe,” i.e., an extended period of unconsciousness or amnesia after the injury.

TBI can cause a wide range of functional short- or long-term changes affecting thinking, sensation, language, or emotions.

·        Thinking (i.e., memory and reasoning);

·        Sensation (i.e., sight and balance);

·        Language (i.e., communication, expression, and understanding); and

·        Emotion (i.e., depression, anxiety, personality changes, aggression, acting out, and social inappropriateness).1

TBI can also cause epilepsy and increase the risk for conditions such as Alzheimer’s disease, Parkinson’s disease, and other brain disorders that become more prevalent with age.1

About 75% of TBIs that occur each year are concussions or other forms of mild TBI.2

Repeated mild TBIs occurring over an extended period of time (i.e., months, years) can result in cumulative neurological and cognitive deficits. Repeated mild TBIs occurring within a short period of time (i.e., hours, days, or weeks) can be catastrophic or fatal.3

For information on how to prevent TBI and the potentially serious effects from this injury, please visit our TBI Prevention page.

CDC’s HEADS UP campaign also includes steps to help protect children and teens from concussion and other serious head and brain injuries both on and off the sports field. Learn more at HEADS UP's Brain Injury Safety Tips and Prevention page.

General Tips to Help Aid in Recovery:

·        Get lots of rest. Don't rush back to daily activities such as work or school.

·        Avoid doing anything that could cause another blow or jolt to the head.

·        Ask your health care professional when it's safe to drive a car, ride a bike, or use heavy equipment, because your ability to react may be slower after a brain injury.

·        

·        Take only the drugs your health care professional has approved, and don't drink alcohol until your health care professional says it's OK.

·        Write things down if you have a hard time remembering.

·        You may need help to re-learn skills that were lost. Your health care professional can help arrange for these services.4

What are the Signs and Symptoms of Concussion?

Most people with a concussion have a good recovery from symptoms experienced at the time of the injury. But for some people, symptoms can last for days, weeks, or longer. In general, recovery may be slower among older adults, young children, and teens. Those who have had a concussion in the past are also at risk of having another one and may find that it takes longer to recover if they have another concussion.

 

Symptoms of concussion usually fall into four categories:

Thinking/

Remembering

Physical

Emotional/

Mood

Sleep

Difficulty thinking clearly

Headache

Fuzzy or blurry vision

Irritability

Sleeping more than usual

Feeling slowed down

Nausea or vomiting

(early on)

Dizziness

Sadness

Sleep less than usual

Difficulty concentrating

Sensitivity to noise or light

Balance problems

More emotional

Trouble falling asleep

Difficulty remembering new information

Feeling tired, having no energy

Nervousness or anxiety

 

Some of these symptoms may appear right away, while others may not be noticed for days or months after the injury, or until the person starts resuming their everyday life and more demands are placed upon them. Sometimes, people do not recognize or admit that they are having problems. Others may not understand their problems and how the symptoms they are experiencing are impacting their daily activities.

The signs and symptoms of a concussion can be difficult to sort out. Early on, problems may be missed by the person with the concussion, family members, or doctors. People may look fine even though they are acting or feeling differently.

See Getting Better, for tips to help aid your recovery after a concussion.

When to Seek Immediate Medical Attention

Danger Signs in Adults

In rare cases, a dangerous blood clot may form on the brain in a person with a concussion and crowd the brain against the skull. Contact your health care professional or emergency department right away if you have any of the following danger signs after a bump, blow, or jolt to the head or body:

·        Headache that gets worse and does not go away.

·        Weakness, numbness or decreased coordination.

·        Repeated vomiting or nausea.

·        Slurred speech.

The people checking on you should take you to an emergency department right away if you:

·        Look very drowsy or cannot be awakened.

·        Have one pupil (the black part in the middle of the eye) larger than the other.

·        Have convulsions or seizures.

·        Cannot recognize people or places.

·        Are getting more and more confused, restless, or agitated.

·        Have unusual behavior.

·        Lose consciousness (a brief loss of consciousness should be taken seriously and the person should be carefully monitored).

Danger Signs in Children

Take your child to the emergency department right away if they received a bump, blow, or jolt to the head or body, and:

·        Have any of the danger signs for adults listed above.

·        Will not stop crying and cannot be consoled.

·        Will not nurse or eat.

Thank you. I have been practicing for 25 years and the time I have spent with Indiana lawyers has been terrific. Whether we are on the same side of the litigation/case or not, is really not relevant. We are friends and from my family to your family, thanks. I do hope I win the next case with you!