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Episode 6: How does an attorney prove a brain injury in court?

In this episode of Brain Injury Insider, host Michael Kaplen discusses the challenges attorneys face proving brain injury in court, and explains how community testimony can help juries better understand this "invisible injury".

I am often asked how does an attorney prove a brain injury in the court room? Well, let's start with the proposition "if you've seen one brain injury, you've seen one brain injury" because every brain injury is unique.

So how does an attorney go about proving that a person has a brain injury when you look at that individual they might seem to be normal? They might be acting normal. There are no props like a wheelchair or a cane that would allow an outside observer to understand that this individual has serious injuries with lifetime consequences.

Our search as an attorney is for some kind of objective proof that this injury has indeed taken place.

Now with a brain injury that's harder than you think, because often MRI studies and CAT scans are not sensitive enough to prove a brain injury.

So what are we left with?

There are no biomarkers of a brain injury such as a blood test to prove that individual has been injured, so we must resort to cognitive testing, also known as neuropsychological testing to determine what deficits in memory and concentration a person might have.

But that's not all. Because the best test of a brain injury is life. So we go out into the community and try to find people who knew our client both before and after this devastating event took place.

And through this process of interviewing friends, co-employees, employers, even people in neighboring stores where people may shop, we are able to ascertain the differences in this individual both before and after their injury took place.

This is something that a jury can understand and appreciate. In fact, they can appreciate these type of witnesses much more than a neuropsychologist explaining a neuropsychological test battery.

When a friend comes to court and looks at a jury and says that John or Mary just is a different person right now. They can't concentrate. They're belligerent. They're often confused. They need to take rests. That's something that the jury can appreciate.

When a co-employee comes to court and compares the way our client performed at work both before and after the injury. How now they need frequent breaks. How now they don't socialize with their fellow employees the way they used to. How people might even shy away from them. That's something that the jury can appreciate.

When the owner of a local grocery store comes to court and tells a jury how Mary used to come in and be friendly and smiling, go to the checkout counter and efficiently checkout, but now can take half an hour to make one little purchase because they can't make a decision, because they get distracted, because they get confused, because they have difficulty counting change or money, that's something a jury can appreciate.

That's what brain injury is about. It's about how it effects a person in day-to-day life. It's not about psychological test that are taken in a very calm, quiet environment. That doesn't simulate real life.

We need people in the community to look at a jury and explain how our clients are different.

And with that type of testimony we are very successful in representing people with a brain injury and proving this invisible injury to a jury.

Audio version

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Brain Injury Insider

michael kaplen
Brain Injury Insider is a weekly video update by The Brain Injury Law Firm ®. We cover the latest news and developments in traumatic brain injury, concussion, and brain injury law.