Barbara L. Legate
published in OBIA Newsletter
Any trip to the courtroom is one taken
by a team: the lawyer and her client. Neither can operate effectively
without the other in that sometimes frightening, formal and powerful
place. This is especially so when the time comes to prove just how that
brain injury has affected you, your ability to function as a family
member, worker, and participant in society. The lawyer does not
know who you were, and cannot present an effective case on your behalf
unless she gets to know you, as you were before the injury. This
article offers a few suggestions about ways you can demonstrate the
changes you have undergone, and in the process, enhance your lawyer’s
understanding of your losses, and improve the evaluation of your case
by everyone concerned.
Start early The best time to put together evidence
of your pre-injury state is at a time when you or your friends and
family have the best recollection of that state. So start early. Don’t
let memories fade, photos get lost, or spring clean up destroy that
valuable evidence.
Don’t Wait to Be Asked
Your lawyer may not think about this
until the last minute, if at all. It is your case, after all, so if you
have good information and evidence that can help it, take it in to the
lawyer or her clerk. A good lawyer will appreciate the value of what
you are offering.
Think Visually
Consider the difference between telling the
judge and jury you used to play soccer, and showing them your team
picture, videotape of you running up and down the field, the team
schedule, or a trophy. Telling the story gives only part of the story.
It may or may not be believed. But tapes, photos, trophies and
documents are inherently believable. After you leave the witness box,
your words may be lost, but a photograph will be made an exhibit, and
can be brought out time and again to remind and reinforce the image of
you as an active participant in soccer, as in this example.
Visual images are convincing. Too many
times, I have heard my clients tell me about their past endeavours. In
the hurly-burly of everyday office life, and the urgency of pressing
matters, I don’t focus properly on what they are telling me. Perhaps I
hear what they are telling me, but doubt that the impaired person
sitting in front of me could have ever done what they suggest. I too
can be affected by solid evidence, and the visual impact of such
evidence.
At the end of this article, I have listed some of the items I ask my clients to provide.
Witnesses Lay witnesses (lawyer-talk for ordinary
people) are the backbone of every case, in my view. Many cases go
before juries. Jurors will sit politely and listen to the testimony of
doctors, many of whom talk over their heads, all with differing
opinions about the effect of the injury on you. Lay witnesses talk
their language. They can explain in real terms what kind of person you
were, what your dreams and aspirations were, what made you laugh, cry,
angry and how hard you worked and played. Lay witnesses are not paid
for their attendance in court. Some come at a personal sacrifice, by
taking time off work, or arranging for others to take over their
responsibilities. They can be very credible and helpful witnesses.
Judges are affected by lay witnesses
too. They sit and listen to doctors day in and day out, hearing
sometimes the same sorts of evidence given by each side. Lay witnesses
make your case different and set it apart.
These may be people who knew you before
and after your injury, or are people who only know you now. You will be
hesitant to involve your old friends, family or co-workers in the case,
fearing they will say no, or be put-off. You may be surprised. While
many people may be hesitant, others will, with assurances that all you
want is the truth, be most willing to tell what it is that they know.
They should be interviewed by a representative of your lawyer, and a
decision made about their involvement left to the lawyer. It helps a
great deal if you give a bit of background about the person, and how
you expect they can help prove your case.
At the end of this article, I have listed some of the types of people you should consider involving in your case.
Demonstration of Your Impairments and Challenges Once again, a picture is worth a thousand words. A few examples will illustrate the point::
These are just small examples, but illustrate how simple it can be to demonstrate the impact of an injury.
It is obvious that a lawyer, on her own,
cannot put together this very effective evidence. You and your family
and friends are the key. Only you have lived your life, and know the
richness of what has gone before, the challenges that have been met,
and those that have not been overcome. Don’t be shy about putting
forward this evidence. Remember, you and your lawyer are a team.
Visual information:
Potential witnesses. This list should be
updated from time to time, when new issues arise and the extent f your
disability is clearer. Witnesses are people who can testify about your
pre and post collision level of function. The list may include:
by