Posted on January 9, 2008 · Posted in Brain Injury

Editors Note: Two days ago, my paralegal Jayne wrote a Blog on how potential clients should interact with a law firm when they are trying to get them to take their case. I then asked a former client to write the counterpoint to Jayne’s Blog: how she thought a law firm should interact with a brain damaged client.
It is below. I do want to warn both clients and lawyers who might read this: these are perfect world theories. In reality, both sides will do their best, but the nature of working with brain damaged clients, in a busy legal environment is not perfect. I have learned from both of these blogs. But I will still be me, and we want you to still be you. If you have a case, call us, prepared or not. If you have a crisis, and we are not as patient at that moment as you need us to be, it isn’t because we don’t care.
Attorney Gordon Johnson__http://gordonjohnson.com__

Here it is:


Client suggestions to lawyers

1. Give the client and his/her family member, spouse, the person who is their primary support, an overview of the legal process from start to finish.

When you use a legal term please explain what this means, what happens during this phase, what kinds of things does the client need to get together, approximately when these phases will occur, etc. The client and his/her support person will be better able to handle these phases if they know what will be coming up and what will be involved during these different phases.

2. Explore early on issues regarding having a guardian appointed for the person with the brain injury.

It is highly likely that the client with a brain injury has poor judgment in many areas of his/her life and could really benefit from having a guardian. This guardian may also serve a very important function of being the one “safe” person to whom the client can speak with in confidence without fear of the defense attorneys bringing up these confidences during depositions. It is EXTREMELY important for the client to have someone other than only the attorney to be able to discuss everything with.

3. Don’t blame the survivor.

You must realize that your client has a brain injury as the result of someone else’s fault. The very nature of being brain injured means that your client will be very frustrating to work with. During these times of frustration, remain as calm as possible—any extra emotion will make the situation worse. Some clients will deal with this frustration by lashing out at you. It may be necessary to arrange another time to talk when the situation has calmed down, and/or to speak with the client’s spouse or guardian. Other clients may deal with frustration by becoming angry at themselves and may be suicidal. You may find it necessary to make sure your client has someone with them when talking about difficult issues.

4. Develop a list of important information your client intake person can email or send to a potential client; make an appointment for the intake call for a time in which the intake person has time to listen and the client (or client’s representative) can share important intake information.

Many people with brain injuries have frontal lobe damage which effects their ability to organize their thoughts. It will probably save both the intake person and the client a lot of heartache and frustration if you can let them know what kind of information you need. Tell the client not to worry if they don’t have everything, just try to gather as much information as possible. Realize that the potential client may not have the ability to do what you ask—this is a double-edge sword you will need to figure out how to handle. On the one hand, listening to the person may give you valuable information about the kinds of deficits s/he has as a result of the brain injury. On the other hand, it may be more helpful to have another person communicate the pertinent information

5. Explain to the client, or his/her family, the important information which will need to be collected or communicated to the lawyer’s office.

You may find it helpful to provide your client with some kind of tools or system for keeping track of important information. For example, a calendar to record appointments with doctors, when s/he had to go to the hospital, etc. A list of medical doctors, hospitals, therapists seen both before the trauma and after the injury with spaces for address, phone number, fax number, dates seen.

6. Sometimes the attorney is the client’s best and/or only advocate in keeping on top of the doctors to properly diagnose the client and clearly explain what is wrong and why.

Brain trauma or damage is a very difficult injury to understand why and how it manifests the way it does in each individual. It will be critical to the client’s case for him/her to have the answers to these questions, since this will come up. Oftentimes, doctors ignore or put off their patients’ request for answers, but may respond better to the lawyer. It is better to get these answers as soon as possible, than waiting a couple of weeks before the trial.

7. Recognize and acknowledge your own biases.

Even though you know your client has a brain injury, you are human like everyone else and may have certain biases which cause you to have inappropriate expectations of your client. Although your client may look like a healthy adult, certain parts of his/her brain may function on the level of a child. He or she may communicate very intelligently in writing, but have very poor judgment or temper tantrums in emotional situations. The challenge becomes how to teach and sometimes set limits with your adult client in a way that is still respectful. Talking about this in an open, respectful way can also help your client understand some of the potential challenges with his/her case. Example: “You communicate so well in writing, the defense will use this against you.” This doesn’t mean the client should lie about their capabilities, it just means that it may be harder to educate others regarding the client’s brain injury.

8. Understand that your client has a brain injury and will not be able to do some of the things you need a client to do. This means that YOU (the lawyer’s office) will need to figure out strategies for the client regarding how to best work with your office.

Example: Many people with brain injuries have difficulty with memory. Something may occur to your client that they think might be important for you to know and they will call your office as soon as this thought pops into their head. This information really might be important, but your office staff does not have the time to take the call or listen carefully. If you ask the client to wait or tell him/her that you will call back later, they will probably forget what they called you about in the first place.

Solution: Develop some kind of consistent, workable strategy. You will also need to assess who is able to assist in this solution. Is it something the client is capable of doing? If not, is there someone else (i.e., family member, therapist, friend, neighbor) who can assist your client?

For example, a consistent response might be:

  • Helen, I’m in the middle of something important right now and only have a few minutes. (Communicate your needs)
  • Your call is also important to me. (Affirm that your client is also important)
  • I need for you to do the following: (Redirect your client for a win-win solution by telling the client what s/he can do right now to help you and him/herself.)4
  • Write down or type what you want to tell me. (This is extremely important because your client will probably forget t
    he reason for calling you once s/he hangs up. Also, people with brain injuries often have a tendency to obsess about things until they are addressed. Telling your client how s/he can channel this energy positively will benefit both of you.)
  • If this includes several things, number them in order of what is most important. (Clients with brain injuries might have logorrhea, a tendency to talk incessantly. Asking them to prioritize will help them work on this problem and will also allow you to set limits on what you have time for when you talk with them again—Helen, tell me the 2 most important things on your list.)
  • Can you write these things down and prioritize them? (Never automatically assume your client can do certain things; check first.)
  • Who can help you with this? (If your client cannot do what you ask or has difficulty with it, ask who can help. This will give you important information about their abilities and challenges and also about their support systems. )
  • Where are you going to put these when you are done? (Help the client develop a routine. For example, they write down their legal communications on bright orange paper and post it on the refrigerator, or in a brightly colored notebook marked Legal Matters with divisions and forms for different areas of importance to their case. People with brain injuries have a tendency to lose things; brightly colored notebooks or paper may be helpful in quickly locating lost or misplaced items.)
  • Helen, I will call you back either later this afternoon or tomorrow morning. Call me back if I don’t call by noon tomorrow. (Give you client a specific time frame when you might get back to them. Saying “It will take me a while to get back to you,” can be interpreted as anything from a couple of hours to a couple of days. Be as specific as possible. Give you client permission to help act as a reminder to you.)
  • What’s the first thing you are going to do when we hang up? (Make sure your client remembers and understands the game plan. If s/he doesn’t, you may need to have him write down the steps of what to do. If you respond to your client in a consistent manner, this will work well and more quickly for both of you in the long-run.)

About the Author

Attorney Gordon S. Johnson, Jr.
Past Chair Traumatic Brain Injury Litigation Group, American Association of Justice :: 800-992-9447