Posted on February 5, 2008 · Posted in Brain Injury

“It isn’t fair, I got hurt, what do you mean you don’t want my case?”

I wish I could help everyone. I feel bad when I can’t. A million concussions a year in this country, conservatively 150,000 people disabled as a result. That would make me a very busy man. I am not that busy. I would like more cases. I would take your case if I could help you.

But, I can only represent someone whose concussion or brain damage was caused by the WRONGFUL CONDUCT of someone else, wrongful conduct that is insured or done by someone with a whole lot of money. If there is a major lawsuit, you can presume that there is insurance, unless it is a company that is listed on the NY Stock Exchange. No one is suing Mrs. Jones or the neighborhood hardware store unless there is insurance.

But, not only must an injury be done by someone’s wrongful conduct, it is wrongful conduct that I can PROVE happened. When you get hurt in a commercial establishment, there is a time honored opportunity to make an “incident report.” All insurance companies, and places like a Walmart, will require an “incident report” any time that someone reports an injury on their premises. When done promptly, that is at least the threshold of the kind of “proof” that a lawyer needs to make a lawsuit possible. Without the “incident” report, the insurance adjuster’s professional skepticism and the jury’s natural skepticism will increase the degree of difficulty of settling or winning, so much, that no lawyer make take the case.

I realize that putting this information on a blog may be pointless. If you got hurt, and you didn’t file an incident report at the time, it isn’t going to do you a lot of good to do it now. But it is very frustrating to both myself and a client, to have to say it when a client calls. If you got into a car wreck and didn’t call the police, you probably won’t have a case most lawyers will take. Most people understand that. The incident report is the equivalent to the accident report.

There is an old saying – that in a products liability case (where a defective product causes the injury) there is no products case, without the product. When a car defect (like a tire) causes a wreck, and the car isn’t preserved, there is no case. Likewise with any other product defect. It isn’t fair. It isn’t just. It is just the truth.

In a premises liability case, there is no case without the incident report, a report done immediately after the accident. The only substitute would be eye witness accounts from bystanders who can describe exactly what happened. Sadly, the people who don’t file incident reports, don’t get witnesses names either.

The sad, but unavoidable irony of this is: If you are concussed, you may not be thinking straight. You may not understand the severity of the injury you suffered. That explains you not reporting the injury. But it doesn’t make the lawyers fundamental job of proving that your injury was caused by the wrongful conduct of others, any easier.

About the Author

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