18 Common Defense Attacks in the Mild Traumatic Brain Injury Case

By Steven M. Gursten.

There is something ironic about how many skilled defense lawyers attack and undermine the mild traumatic brain injury (MTBI) case. A jury must find a plaintiff likeable, honest and credible to want to help him or her and return a fair verdict. But in so many of these cases involving MTBI, it's often the brain injury itself that makes a plaintiff unlikable.

Nevertheless, there are several things we as lawyers can do to improve the odds of winning these cases. And the most important thing starts in case selection. Simply put, there are some cases you probably should reconsider before investing hundreds of hours of your time and tens of thousands of dollars in costs into taking these cases to trial.

Three fleas and it’s a dog

 One expression that has saved me from a lot of pain over the years -- and one I’ve come to regret when I’ve ignored it -- is “Three fleas and it’s a dog.” These “fleas” are exactly where the most skilled defense lawyers will attack and pick apart your client’s likeability, honesty and credibility.  Once you get to three or more points where your client is vulnerable to defense attacks, you may want to reconsider if this is truly a case you want to take to trial.

The bottom line is that people with brain injury are worthy of our help. Helping the survivors of MTBI is one of the noblest fights a personal injury attorney can join. You are truly helping the underdog, as these people desperately need help and competent, understanding legal representation.

[sws_pullquote_right]We as attorneys stop referring to our clients as victims in the courtroom. We should be framing these cases and our clients as survivors. [/sws_pullquote_right]

What makes it worse is that so many of these common defense attacks are completely unfair. They contradict well-established medicine and the science of mild traumatic brain injury.  For example, if a defense neuropsychologist finds poor motivation, she is not saying that your client does not have a brain injury. She is only saying that the testing results are invalid, for whatever reason – chronic pain, fatigue, depression, or a conscious effort to perform badly and deceive the tester.

Defense lawyers will emphasize "malingering" because it harms your client's credibility.  Malingering is but one of many possible legitimate explanations, but the allegation of malingering puts a cloud of suspicion over everything that happens at trial.

The medicine is clear that you do not need a loss of consciousness to suffer a brain injury. The science has shown that people can be seriously hurt and sometimes even killed in automobile accidents involving minor vehicle damage. But what juries commonly believe is a serious brain injury, and what the medicine is, are sometimes two very different things.

18 of the most common defense attacks

1. No accompanying physical injuries.  A brain injury is always easier to accept and believe when there are physical injuries such as herniated disks or fractures from the same motor vehicle accident.
2. No or very little vehicle damage.
3. No loss of consciousness.
4. A delay of many weeks or months before a TBI diagnosis.
5. Changing and evolving histories by the plaintiff.
6. Poor grades and prior school performance.
7. Poor prior work performance and a spotty job history.
8. A history of prior lawsuits and prior accidents.
9. Any claim involving disability.
10. Prior work injuries and workers compensation claims.
11. Physical assaults and sports injuries.
12. A diagnosis of malingering or exaggeration made by a treating doctor (usually very difficult to overcome).
13. A plaintiff who is wearing a soft tissue cervical collar or sunglasses for weeks or months after a motor vehicle accident.
14. Damaging surveillance.
15. Attorney referrals to medical doctors.
16. A criminal record, especially one involving theft, dishonesty or false statements.
17. No lay witnesses, such as friends and family who can corroborate the injuries, and no co-workers or supervisors who can testify on your client’s behalf. Lay witness testimony in these cases is vital.
18. Ethnic prejudice. Unfortunately, this is a real problem that exists today. An illegal immigrant laborer will not fare well with a “blue-collar” jury in Detroit or Flint. Defense lawyers and insurance companies typically will contest the cases of illegal immigrants more aggressively than they will with other cases.  They're also more likely to be red-flagged for Special Investigations Units early on.

How to rebut these common defense attacks

The single best way is by showing the worthiness of your client. “Worthiness” translates into helping show how your client has demonstrated conservative or “American” values throughout his life. When the plaintiff demonstrates values that are important to jurors, this makes the plaintiff more worthy and credible.

Some of these values include a history of hard work, self-reliance and personal responsibility. Self-sacrifice, volunteering, loyalty to family, to an employer and to our county; compassion toward others, support of family and faith.

It also helps tremendously if we as attorneys stop referring to our clients as victims in the courtroom. We should be framing these cases and our clients as survivors, as people who have worked extremely hard to try to overcome the obstacles that someone else’s carelessness and negligence have placed in their paths. Don’t allow your client to roll over and play dead.  Instead, show how hard they're working to get better and overcome the challenges they now face.

Ultimately, these are "invisible injury" cases.  The jury must believe the plaintiff, and must believe the plaintiff is worthy of help, if they are going to be motivated to return a verdict.  Anything you can do to rebut these 18 common defense attacks by making your client more worthy of help, and of making your client more likeable, credible and honest, will help to secure a meaningful and fair result.

ased in Farmington Hills, MI, Steven M. Gursten is recognized as one of the nation’s top attorneys handling serious auto accident injury and wrongful death cases, and no-fault insurance litigation. He is head of Michigan Auto Law, the state’s largest law firm handling car accident, truck accident and motorcycle accident cases for more than 50 years.