Sometimes a survivor of a traumatic brain injury looks and acts normal, but the person is actually suffering from an invisible injury. To a jury, the person may look like any other person, so to make the injury real, witnesses must testify to show how the person changed into a different person from before the traumatic brain injury.

Identify the witnesses to traumatic brain injury before filing a lawsuit. Expert witnesses explain the injury. An expert witness must have personal knowledge on what s/he is testifying to. An expert witness may state an opinion if (1) the witness has scientific or specialized knowledge on the subject in which he testifies that assists a trier of fact, (2) the witness qualifies as an expert, (3) the witness possesses reasonable probability regarding his opinion, (4) the opinion is supported by a proper factual basis.

A lay witness can only testify to what is within his/her personal knowledge. The lay witnesses for a brain injury case may be a parent, spouse, friend, or co-worker. A good lay witness is someone close to the brain injury survivor. The witness should know the survivor for many years before the head injury and have regular contact with the survivor after the injury. A witness who is not related to the survivor may be a better witness than a family member because the witness does not have any interest in the outcome of a case, whereas a family member living with the survivor may be frowned on as wanting money rather than making the survivor whole.

The witness should produce examples on how the injury affected the survivor. For example, when victims of head injuries survive car accidents, a nightmare starts with few residential treatment centers taking insurance or insurance not paying for brain rehab, according to The Virginian-Pilot. Treatment usually gets offered only to individuals with private money, workers’ compensation, or a lawsuit settlement. According to the news article, one man, age 23, suffered a brain injury in a car accident in 2006. After a hospital stay and rehab, he returned home to find the part of his brain that controlled impulses not working. When he got angry, he lashed out at people. His mother took care of him, and ended up with bruises, bites, and black eyes. For this man, his mother would be a potential witness on how the injury transformed the him from his prior life.

For a powerful brain injury case, obtain an experienced Chicago attorney who knows what to look for in “before and after” witnesses.

Loss of consciousness is an important factor in brain injury cases, as loss of consciousness often accompanies serious head injuries. Although it is entirely possible for a brain injury to occur without a loss of consciousness, it is more likely that a loss of consciousness has occurred but not documented. Emergency room records often note “no reported loss of consciousness,” but as a rule, emergency personnel are not at the scene of the accident. Such a report, which may simply be inaccurate, can hinder a brain injury claim due to the above misconception. This means the attorney must look for signs of a loss of consciousness that may not be readily apparent to others.

In some cases the plaintiff may have been alone at the time he suffered a loss of consciousness, in which case there would be no witnesses and no record. For this reason, the plaintiff himself will typically be the best source in determining whether there was a loss of consciousness. A detailed interview with the plaintiff with particular attention to time sequence will provide clues, such as a gap in memory. If an interview does not reveal an unexplained gap in memory, it may very well reveal a change in mental state, such as forgetfulness or confusion. Family members may also lend insight: Was the plaintiff confused when they returned home? Did they repeat themselves? Sometimes a loss of consciousness will not reveal itself until hours after the injury occurred.

Similar information can also be gleaned from ambulance and emergency room reports. References to certain symptoms such as disorientation, nausea, or the need for oxygen could indicate a loss of consciousness occurred. Some common physical symptoms are fatigue, seizures, difficulty with speech, loss of motor control and coordination, sensory problems, difficulty sleeping, headaches, dizziness, nausea, vomiting, and balance difficulties. Common cognitive symptoms include loss of short-term or long-term memory, slowed thinking, difficulty concentrating, impaired judgment, reduced organizational skills, difficulty completing tasks, short attention span and lack of initiative.

A loss of consciousness can manifest itself in many ways, and a diligent attorney can use these symptoms and behaviors to support the argument that an otherwise undocumented loss of consciousness did occur. In doing so, the attorney can better persuade the jury that a loss of consciousness, and therefore, a brain injury, was sustained.

As with most personal injury cases, damages in a brain injury case typically consist of past, present, and future medical expenses; present and future lost wages; and pain and suffering. Damages in a brain injury case can be significant, largely depending on the severity and extent of the plaintiff’s injuries. A careful plaintiff’s attorney should employ the best expert witnesses when proving damages, and should consider the following special challenges which plaintiff will face when calculating damages in a traumatic brain injury case.

Medical Expenses. Survivors of severe brain injury require extensive, and often costly, medical attention. In addition to the emergency medical professionals, a brain injury patient will likely need on-going or long-term care from a variety of other medical specialists. Plaintiff’s attorneys often mistakenly extrapolate total damages from present medical expenses. In reality, there is no relationship between the amount of the present medical bills and the extent of the plaintiff’s disability and total damages.

Plaintiff’s attorneys often err in classifying life care costs as future medical expenses, and employ a physician to testify to the amount. Physicians, however, rarely have real knowledge of long-term care costs, which can include rehabilitation, substitute household services, assistive or adaptive devices and transportation, etc. An expert in outstanding life care will be far more persuasive, and qualified, to testify to the extent of life care costs, and can open the jury’s eyes to the full extent of the plaintiff’s loss.

Pain and Suffering. Pain and suffering is always the hardest number to predict, and unfortunately, it is largely dependent on the individual values of the jury members. Rather than relying on the jury to choose a large pain and suffering number based upon impassioned closing argument, let the magnitude of the other damages direct the jury. The jury will likely use medical expenses and loss of earnings to gauge pain and suffering.

The Illinois House of Representatives has passed Zach’s Law—which requires soccer clubs, park districts, and other organizations with social goals, to use tip-resistant goals and to follow proper protocol to make sure the goals are anchored. Zachary Tran, the namesake of the bill, was a Vernon Hills boy who suffered a severe injury to his head on the soccer field, in 2003. Jayson Tran v. American Playground Corp, et al., the wrongful death case, settled for $2.5 million with American Playground company, $500,000 with the goal manufacturer, and $250,000 with the Vernon Hills Park District. In the lawsuit, the complaint alleges that the goalpost had no counterbalance and the ground stakes, which it relied upon for balance, were missing. This then struck Zach in the back of the head, resulting in his death.

The parents of Zachary Tran became advocates of soccer goalpost injury prevention. At the beginning stages of the litigation, the attorney for the Tran’s said they just wanted to warn people about the dangers of the goals and for this to never happen again. Zachary Tran’s family created Anchored for Safety (anchoredforsafety.org) which is a public awareness initiative for safe soccer goals. The personal injury attorney of the plaintiff in this case, Shawn S. Kasserman, assisted on the drafting of the bill, which is now waiting to be passed in the Senate (as of 4/22/11).

This bill is a step toward 1) eliminating soccer goals with a deadly design and 2) preventing severe brain injuries or even death. The bill will create the Movable Soccer Goal Safety Act and require organizations that own and control movable soccer goals to create a policy about soccer goal safety. This Act also bans the sale (and distribution) of goalposts that are not tip-resistant. Organizations will be given one year to comply with the Act.

Although recently in the news, there has been talk of a lock out, a strike and god-forbid no NFL in 2011, but that is not the only thing going on in the NFL. The NFL has created the NFL Sidelines Concussion exam, a group of tests used to evaluate balance, basic thinking skills and concentration. Along with the creation of the exam, each team will be required to use this neurologic test to determine whether a player sustained injury to his brain. The test must be given 6-8 minutes from the time the player suffered the injury. Taking these steps the NFL is trying to create a uniform standard across the board in order to assess concussions. In the past ten years, a substantial amount of data has been published, showing that traumatic brain injuries have impacted the lives of the players for years after they have left the league.

To implement this into the NFL, every player in the league will be given a test at the beginning of the season to create a baseline specific to each player. This baseline test will then be compared to the test given on the sideline to determine whether or not the player has in fact suffered a brain injury. If his performance on the sideline test is dramatically different from the baseline test, the player will be removed from the game.

When 160 NFL players were surveyed, almost half of them admitted they had a severe head injury and hid it from their team. University of Michigan’s Institute of Social Research unveiled that 6.1 percent of players that responded were suffering some form of memory disorder–Alzheimer’s or dementia. That statistic is five times the average for men their age.

Although the NFL is implementing this to track concussions, it is also clearly a preventative measure for future exposure for brain injury litigation stemming from multiple concussions in a season or a career.

Traumatic brain injury, TBI, is unlike most other injuries. Sometimes a person doesn’t even notice that they have suffered a brain injury, other times the effects are immediate. Each and every brain injury has a different recovery potential and time frame. This makes brain injury litigation and settlements one of the most difficult areas to assess. There is potential that with the right medical resources someone will recover in 6 months or someone may have permanent effects.

Congresswoman Gabrielle Giffords suffered a brain injury earlier this year, but the exact status and timeline of her recovery is still unknown. Albeit Giffords has received intensive physical therapy and has regained some speaking, writing, and mobility, it is unclear whether she will fully recover, much like other brain injury patients.

There are two categories of traumatic brain injuries: mild and severe. Mild brain injuries are identified by a person losing consciousness, having confusion or having disorientation for thirty minutes or less. Effects of mild traumatic brain injuries include: headaches, loss of memory, mood swings, and attention deficits.

Severe brain injuries occur when a person loses consciousness for more than 30 minutes and memory loss lasts longer 24 hours. Effects of severe brain injuries vary from comatose states, limited function of their limbs, loss of cognitive ability, emotional problems or abnormal language or speech.

The effects of TBI are often extensive. Some individuals that suffer severe traumatic brain injuries are left in unresponsive states for months, years, even decades. For people like Congresswoman Giffords, sufferers of severe traumatic brain injuries, long-term rehabilitation is often needed to maximize independence and motor function. Settlements of these cases can range from a few thousand to millions. For instance, a recent case in Cook County, Estate of Shamiran David v. Rush Northshore Medical Center, et al., No. 07 L 8444, settled for $5 million dollars.