What to Know About Brain Injury Lawsuits

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jun 29, 2022

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Brain injuries can play a complicated role in legal cases, since their very nature can make them challenging to identify and prove. If you’re faced with a situation where you must prove the existence of a specific type of brain injury, whether for the purposes of insurance, a lawsuit, or any other situation, you should first seek the help of a qualified lawyer. A lawyer who has worked with brain injury cases will know what types of proof and information the court will require in order to satisfactorily support your claim.

Evidence of a Brain Injury

If you must provide evidence of a brain injury, you should be prepared to obtain any and all medical records and other documentation requested by the court and/ or the insurance companies. Brain injuries can typically be proven through medical examinations and the opinions of qualified specialists. 

Brain injuries are classified according to the effects they have on cognitive thinking and behavior as well as on the physical aspects of the brain itself. Therefore, you should expect the court to require psychological records and behavioral reports to show changes in behavior that support the injury claim, along with MRIs, CT scans, and EEGs to show physical alterations that further support the diagnosis.

In general, the properly documented opinions of medical specialists will provide sufficient legal proof of the injury’s existence and should allow the court to officially acknowledge the injury. You may also be asked to undergo an examination by an independent physician employed by the defense or the insurance company in order to have your symptoms confirmed.

Consulting an Attorney

It is often in your best interests to cooperate with requests for medical documentation of your brain injury in order to build your case and provide even more conclusive evidence that your injuries are real.  Because brain injury lawsuits can be serious, it is important that you consult with an attorney.  An experienced lawyer can help you get the appropriate evidence of your brain injury and make sure you are able to prove its existence during a lawsuit.

Most brain injury attorneys charge fees based on a percentage of how much money you are awarded.  These fees, called contingency fees, are typically around 20 – 25% if the case settles, and 35 – 45% if it goes to trial.  Going through trial is a lot of work, and most attorneys charge a higher percentage because they put in more effort.  You should negotiate an acceptable fee with an attorney before you take action to hire them.

Negotiating Attorney’s Fees

All attorney fees are negotiable, so you can always attempt to get a lower fee by asking and haggling with your attorney before settling on an agreed price.  Negotiating an attorney fee is not always easy, particularly if the attorney is established.  If you are hiring an attorney from an established law firm, you are less likely to get a lower fee than if you are working with an attorney who practices on their own.  If you are serious about negotiating your attorney’s fees, you should be prepared to compare attorney pricing, and be willing to walk away from an attorney without hiring them if they do not meet your fee demands.

One way to save some money is to demand that the advanced expenses of going to trial and filing a lawsuit are paid out of the gross settlement amount, which is the total amount before lawyer’s fees are deducted. For example, if your settlement is $600,000 and the lawyer takes 30% of that, you pay $180,000 in attorney fees. If you pay all of your advanced expenses out of the total first (let’s say you have $100,000 in court fees, medical expenses, expert witness fees, etc.), your lawyer will be taking 30% of $500,000, or $150,000 in attorney fees. This saves you in attorney fees and gets a little extra money in your pocket.  While some lawyers may not negotiate for a lower fee, you can try this approach to get more money in your pocket.

NOTE: Keep in mind, the cheapest lawyer isn’t necessarily the best lawyer. If the best traumatic brain injury lawyer in town has a fee structure that you don’t like, it may be worth accepting it because he is going to get you a bigger settlement than someone with less of a reputation.  

Time Limit for a Brain Injury Lawsuit

The time limitations for filing traumatic brain injury lawsuits vary from state to state. This time limitation (referred to as “the statute of limitations”) is usually one or two years in a brain injury case, but depending on the circumstances, the period of time may be longer or shorter. For example, in many states, an injured child has a longer amount of time to file a lawsuit (sometimes up to the age of 18). Or if a government entity (a post office, for example) caused the injury, the time for filing a claim may be as short as 180 days. Because of the short statutes of limitation in brain injury lawsuits, it is always a good idea to contact a lawyer right when you suspect your injury has been caused by another person’s wrongdoing. Don’t wait until the last minute. The more time your personal injury attorney has to investigate your case, the better.

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