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Ethical Considerations for Attorneys Representing Brain Injury Survivors in a Personal injury Lawsuit

De Caro & Kaplen partner Michael V. Kaplen, a three-term president of the Brain Injury Association of New York State, and professorial lecturer at law, teaching a course in brain injury law at the George Washington University Law School, discusses ethical considerations for attorneys representing brain injury survivors in a personal injury lawsuit, and other professionals working or interacting with brain injury survivors.

What ethical considerations attorneys and other professionals must remember when representing or working with brain injury survivors?

  • Professionals working with brain injury survivors must understand that they are coming to you because they have cognitive problems, emotional issues, behavioral issues and perhaps even physical issues.
  • All brain injury survivors must be treated with compassion, dignity and respect.

What difficulties might a brain injury survivor have in maintaining a satisfactory professional relationship?

  • Cognitive impairments that can cause concentration problems, or memory problems.
  • Physical symptoms such as headaches or sensitivity to bright lights or loud noises.
  • Behavioral problems such as disinhibition causing inappropriate actions or comments.
  • Emotional impairments causing crying or laughing at inappropriate times.
  • Speech and word retrieval difficulties.

What consideration should a personal injury attorney have in meeting with a client who has sustained a traumatic brain injury to foster a good relationship?

  • A meeting with a brain injured client differs from meetings with a client with other physical injuries.
  • Limited ability to accomplish tasks in any meeting.
  • Client and attorney frustrations.
  • Difficulties keeping up with a fast-paced conversation.
  • Slow responses to questions.
  • Reduced reading or writing abilities.

What steps should a personal injury attorney take in meeting with a client who has sustained a traumatic brain injury to foster a good relationship?

  • Schedule additional time for meeting with a brain injury survivor.
  • Slow down your conversation.
  • Avoid time pressure meetings.
  • Focus on one particular problem at a time in a meeting with a brain injury survivor.
  • Rephrase and repeat what has been said to make sure that that individual understands the information conveyed.
  • Request feedback to ensure comprehension and understanding of the discussion.
  • Place important information in writing.
  • Take frequent breaks because of the cognitive fatigue that that individual might suffer from.
  • If the information that you are intending to discuss is not highly sensitive or confidential it makes sense to ask them to bring someone with them, so that when they leave, they can go back to that individual and discuss the meeting that they attended.

What important limitations should a personal injury attorney consider in representing a brain injury survivor?

  • Not every individual is right for every attorney.
  • Attorneys must understand their own limitations and instruct their staff on how to work with a brain-injured client.
  • Attorney’s staff must be trained and instructed not to laugh or frown at brain injured individuals; to exercise patience and restraint in comments and actions, and to always treat a client with a traumatic brain injury with compassion and respect.

More information on the Brain Injury Law Firm®:

About The Author

Michael V. Kaplen

Michael V. Kaplen represents victims of vehicle collisions, unsafe buildings and construction sites, and medical malpractice, and is a preferred attorney of The Brain Injury Association of America.

Michael is board certified as a Civil Trial Advocate and board certified in medical malpractice litigation. He is a Professorial Lecturer in Law, The George Washington University Law School, The Legal Aspects of Traumatic Brain Injury.

Michael is past chairman of the American Association for Justice (AAJ) Automobile, Highway and Premise Liability Section, past chairman of the AAJ Traumatic Brain Injury Litigation Group, three term president of the Brain Injury Association of New York State served two terms as chair of the New York State Traumatic Brain Injury Services Coordinating Council and vice-president, New York State Academy of Trial Lawyers.

He was invited by President Obama to participate in the White House Healthy Kids & Safe Sports Concussion Summit.

He is admitted to courts in New York, Florida, and Washington, DC. He has been selected as a New York Super Lawyer and recognized by Best Lawyers of America and U.S. News and World Report in personal injury law.

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