By Jeffrey M. Heller, Esq.
If the insurance company refuses to compensate you fairly following your TBI accident, and you are forced to file a lawsuit, your lawyer will have to answer tough questions for the jury, such as ”what is your injury ‘worth’?” and “what should the jury order the person or company who caused your injury to pay you?” If your lawyer cannot do this, the jury could award you nothing. To make this even more difficult, the law prohibits lawyers from asking jurors to put themselves in their client’s shoes. This is called the “Golden Rule”. If your lawyer breaks the Golden Rule and asks the jury: “Put yourself in my client’s shoes. How much money would you want if this happened to you?”, the case would result in a mistrial, which means the trial would have to start all over. Could you imagine receiving a jury verdict of many millions of dollars for your TBI only to learn that your lawyer did something improper? And worse, you must start the entire trial over, possibly months if not years later?!
Well, what happens if your primary injury is fatigue? How does your attorney show the jury what this amounts to without asking them to put themselves in your shoes? And either way, how will they ever be able to put a “value” on what you go through day-in and day-out?
Fortunately, lawyers who specialize in TBI cases know how to navigate through this difficult conundrum, as we face it every time we step into a courtroom. When we ask jurors to determine an amount of money for your harms and losses, we are required to explain what the correct amount is and why. The best TBI lawyers will make sure your friends, family, and co-workers testify on your behalf, because they are oftentimes in the best position to explain to a jury what you go through every day. But what else do they do to ensure the jury really “sees” you?
On its own, fatigue is an injury difficult for people to understand. This could be said for many complications from TBI. But fatigue especially, because you cannot touch it, you cannot feel it. Sometimes, it can be right next to you without you even knowing. Surely then, a jury does not understand what it “costs,” do they?
Your TBI lawyer should know fatigue causes devastating consequences. From an employability standpoint, fatigue destroys, if not eliminates, your work output. The boom-bust cycle makes it virtually impossible to produce at a steady level. You may be able to get away with a productive morning overshadowing your fatigue-filled afternoon, but studies show individuals with a disability are prone to unemployment. Fatigue is absolutely one of the reasons why. Unemployment is even more profound as an individual grows older. This results in direct economic harm to a TBI survivor.
Fatigue also destroys relationships. After a long day, ask a non-TBI survivor how much capacity they have for conversation or intimacy. On top of this, one can only imagine a TBI survivor’s difficulty with constant fatigue.
But again, how do you put a number on this? An experienced TBI lawyer will hire experts to help. Numerous experts in various capacities can cite literature and research to educate the jury as to how many different aspects of your life fatigue impacts. While your friends, family, loved ones, and co-workers are phenomenal witnesses, your TBI lawyer can use the skill and experience of various experts to prove how each aspect of your life amounts to a different level of compensation. Imagine if a juror gave you $500 every time you felt too fatigued to participate with your family, and experience the loving moments every parent, spouse, child, etc., lives for. Now imagine that calculated over your life expectancy. Since this happens to most TBI survivors several times a day, the amount can add up quickly. This is just one example your lawyer will use with the jury.
If you or a loved one suffer fatigue because of a TBI, and a negligent third-party caused your TBI, it is critical that you call a TBI lawyer immediately to help you calculate the monetary value of your day-to-day losses. If you do not fight for what you deserve, a jury will never get the chance to even hear about what life is like in your shoes. After what you have been through, this is the least someone can do for you.
Jeffrey M. Heller is a trial attorney with Nurenberg, Paris, Heller & McCarthy Co., L.P.A., in Cleveland, Ohio. Mr. Heller focuses his practice solely on personal injury and medical malpractice, specifically in the area of brain injury. Mr. Heller firmly believes in the right to trial by jury and has tried more than 25 cases to a jury verdict. His past five jury verdicts have resulted in more than $3 million in damages for his clients. Mr. Heller has been included on Ohio’s Rising Star list, which is selected by the research team at Super Lawyers. He has also been selected to America’s Top 100 Personal Injury Attorneys and the National Trial Lawyers Top 40 Under 40. He can be reached at 216.621.2300.
 Trupin, L. and Yelin, E.H., Employment Experience of Persons w. Limitations in Physical Functioning, Disability Statistics Report, (12)