THE INFORMATION ENCLOSED HEREIN IS NOT LEGAL ADVICE AND MS. ALBANO IS NOT YOUR ATTORNEY, PLEASE CONTACT YOUR OWN LEGAL COUNSEL.
By Eliza Marie Somers
You might have heard the phrase: Choose your friends wisely. Well, this can and should apply when picking an attorney to represent you, especially after a traumatic brain injury.
That was one of the main takeaways during the Brain Injury Hope Foundation’s Survivor Series: Navigating the Legal System for BI Survivors on July 9, 2021. The Zoom session featured Rebecca Albano, Esq., attorney/owner of Law Office of Rebecca Albano, LLC. Albano is also a volunteer board member of the BIHF.
“The right attorney makes you feel comfortable,” Albano said. “That’s very important. … This process can be overwhelming and intimidating especially if you hire the wrong attorney.”
Session facilitator Joanne Cohen added, “How you feel with an attorney is key. It has to be someone you can collaborate with.”
In her book, “Getting Hit, Getting Up, Moving Beyond: My Journey Through Brain Injury,” Cohen wrote, “Selecting the right attorney is critical to your survival of the process, your sanity and to obtaining the best results.”
Facilitator Joanne Cohen wrote a book about her recovery from multiple brain injuries. The book includes a chapter about the legal process she wrote with Attorney Rebecca Albano. Here is a link to purchase the book: https://www.amazon.com/Getting-Hit-Up-Moving-Beyond/dp/1733839704.
So, how do you pick an attorney? Albano said one of the best places to start is “word of mouth.” “If you know folks in similar situations, who are the people they trusted?” she said.
Don’t just settle on the first attorney you hear about, look at several attorneys, understand their business model AND interview them. Albano suggested a few tips for picking someone to represent you.
Some questions to ask and observations to make while you are determining who will represent you include:
- Have they represented someone with a TBI? And how many?
- What percentage of the practice is dedicated to personal injury?
- What is their specialty?
- Are you on a contingency fee or hourly fee, and what are the financial risks?
- What would be the attorney’s approach or philosophy to win your case?
- Are you taken seriously?
- Do they respect your time and return phone calls?
- Do they understand brain injuries?
“Do proper screening of your attorney,” said Albano, who noted an attorney’s empathy for you and your injury are crucial.
If you are in an accident that involves insurance companies, Albano suggested hiring an attorney as soon as possible, because the phones calls and paperwork will start coming in droves and almost immediately — all at a time when the TBI survivor is in the acute phase of the injury.
“You can’t count on insurance companies to be objective,” Albano said. “They will want recorded statements and medical releases. Insurance companies ask for a lot of paperwork that they are not entitled to, especially in third party cases. They will use legal terms to devalue you. It’s best to have someone watch out for you. Don’t rely on insurance companies to do the right thing. You won’t be happy.”
Cohen added, “It can be very manipulative.”
“Insurance company lawyers have a job to do, and some are more aggressive than others,” Albano explained. “Insurance companies do a lot of medical evaluation without being qualified. Even today with little medical training involved they are making critical life decisions, and they many know nothing about TBI.”
During this process, the TBI survivor is trying to get better as quickly as possible and may be seeing multiple doctors and therapists, thus they may be over-extended, exhausted and lack critical thinking, another reason to have an empathic attorney on your side.
“Your job is to get better,” Albano said. “Obtain the treatment you need to recovery, and know what parts are not getting better.”
The Legal Process
The route to litigation is long and windy, so don’t expect a quick resolution. “Brain injuries are one of the hardest injuries to recover from,” Albano said. “A lot of people are going to get better, but you may have lasting symptoms that are hanging on. If you accept a settlement too early it is almost always a bad idea.”
Here are some of the steps to the legal process:
- Complaint: This alleges and details the injuries and damages occurred due to the negligence of the at-fault party.
- Answer: The defendant has an opportunity to respond to the complaint.
- Discovery: This is when both sides exchange information in the case, and varies on jurisdictions. “Your health history comes in to play, and it can be used against you.” Albano said.
- Interrogatories: The process of requesting documents, information, and admissions.
- Depositions: An oral or videotaped examination where the survivor will provide testimony under oath.
- Mediation: This procedure involves a third party, often a former judge, to try to resolve the case.
- Trial: The trial can be in front of a jury or a “bench trial” with a judge, depending on jurisdiction.
Albano, and Cohen also noted in her book, that trials can be emotionally wrought and a financial risk if you do not succeed.
“You take a chance with a jury,” Albano said. “It is a risk. You are leaving your case to a group of strangers. You have to be OK with that risk. You have to know your jury pool – your jurisdiction. … Now, more people understand mTBIs, but it is a risk. A trial can be very, very daunting for some.”
“Social media can and will come into play if it can be used against you,” Albano explained. “Know that insurance companies love social media,” she said. “They use it to discredit claimants. Be aware of what you put out there and what your friends put out there. You need to be aware of your social media footprints. There’s a lot of different ways to track your behavior and what you are doing. TBIs are unique injuries and may not represent themselves in social media as strongly as other injuries. Insurance companies will try to use that against you. You can’t delete posts but be aware.”
And remember through this whole process you must be truthful.
It’s a long road, and will take its toll on a TBI survivor’s energy level, so a survivor must take care to protect against fatigue.
“The civil justice system can be very cruel,” Cohen said. “It’s emotional. You are risking everything. It takes all your time. It’s a recipe for a lot of stress, and you have to know your abilities to survive it.”
“This system is not designed with the injured in mind, but this is the system we have,” Albano added. “It is not built for the victims, and it can be a difficult process. … I think it (the legal system) works but it is fraught with landmines.”
And this goes back to choosing your attorney wisely: One who shows empathy to their clients; one who has worked with TBI survivors; one who is not overwhelmed with clients, and one you can rely on and trust.
Joanne Cohen demonstrates the “thank you” gesture the BIHF uses during the Survivor Series to honor those who have hearing issues.