The Search for the Perfect Plaintiff


Posted on 27th June 2008 by Gordon Johnson in Uncategorized

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The technique almost all attorneys hired by insurance companies use to defend brain injury cases, is to blame all of the problems the injured person has after the accident on psychological problems the plaintiff had before the accident. The reason is that post concussional symptoms have much in common with the symptoms someone might have from depression. For that reason, defense attorneys and the doctors they hire will blame it on pre-morbid (pre-injury) factors, even if there is no documentation of such psychological issues beforehand.

Thus, experienced plaintiff attorneys become progressively more gun shy about representing someone who has had documented problems before they got hurt. History of migraine, don’t want the case; history of counseling, don’t want the case; prior accidents, don’t want the case. The list of reasons to not represent someone with a brain injury could go on for two pages, but suffice it to say I have heard lawyers I respect give entire lectures devoted to all the reasons not to represent someone.

To a degree, such caution is a self preservation instinct, because the amount of money and time a plaintiff attorney invests in a case. When a plaintiff attorney chooses the wrong brain injury case, not only do they risk not making any fee for his or her time (almost all of these cases are handled on a contingent fee basis) but the lawyer may lose tens of thousands of dollars in out-of-pocket costs, to get the case ready for trial. I confess to turning down cases that other lawyers are willing to take a chance on. My firm and our colleagues only have so much time and resources. Sometimes, there are just too many negatives to justify going forward.

Yet while I turn down many cases, I am turning down fewer cases because of concerns about a pre-morbid mental health issue. While such issues make a case more difficult, they also make it more significant. Concussion, quite simply, does not disable most people. But it does disable a significant minority, probably in the neighborhood of 15%. Pre-injury psychological problems might make a case more complicated, but to me, they also make it more credible. The “perfect plaintiff”, is considerably less likely to be the person disabled by a seemingly routine concussion. That person would likely have a steady improvement over the first few days after the concussion, and like young jocks, be back in the game a week or two later.

Yes, I suppose there are cases where a remarkable individual – with no clouds on their medical or emotional history – suffers a moderate to severe brain injury and becomes clearly disabled. But if you represent only the “perfect plaintiff” you will turn down far too many people whose cases merit representation. While I choose my challenges carefully, the challenge of connecting pre-morbid vulnerabilities to actual resulting pathology and disability, is one I am shying away from less and less.

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