Guide to Selecting Legal Representation

In the aftermath of a brain injury, the injured person and his or her family often need to seek the advice of an attorney. Medical treatment, such as brain injury rehabilitation, and long-term care services are expensive and may span many years. Individuals and families must address and make decisions on financial issues, estate planning, returning to work or school, establishing guardianship or a power of attorney, and other issues.

The Brain Injury Association of America (BIAA) provides an interactive directory of Preferred Attorneys with experience handling brain injury cases. The directory is available on BIAA’s website, and users may search for a local preferred attorney specializing in one of three practice areas: personal injury, civil rights, and financial issues.

Personal Injury Attorneys

People who sustain brain injuries from vehicle crashes, medical malpractice, falls, defective products, or other incidents caused by another party’s carelessness often find it helpful to talk to an attorney. Pursuing the corporation or individual that caused a brain injury is a way to ensure justice and accountability. A lawsuit can also provide financial resources to aid with rehabilitation and long-term care if the injury causes a permanent disability. Sometimes a lawsuit will encourage the responsible party to take steps to prevent injuries to others in the future. The plaintiff is the person suing, typically the injured person or the family (or estate) of the injured person. The defendant is the party or parties that caused the brain injury. One of the most important reasons to get legal help is the difficulty of determining who is legally responsible for the injury. In a motor vehicle crash, the driver of an automobile, his employer, the automobile manufacturer, the local government or its employees, or the bartender at a local bar could all be liable. A Personal Injury Preferred Attorney will investigate the case, determine what kind of case to bring against which defendant, and begin preparing the case while the injured person and his or her family focus on rehabilitation and recovery.

Choosing a personal injury attorney can have significant long-term implications. The attorney will seek to obtain full compensation for medical bills, lost income, and future care costs. The attorney may also seek damages for pain and suffering. Choosing an attorney requires consideration of many factors, including education and training, knowledge of the consequences and treatment of brain injury, knowledge of how to structure and manage awards, and experience with similar cases. An attorney must have the financial resources to try the case as well as access to the best experts. When interviewing a prospective attorney, here are some important questions to ask:  

• How much of your practice is devoted to personal injury?
• Of your personal injury cases, how many are devoted to brain injury?
• How did you first become involved in brain injury cases?
• Based on the information you have, what are the strengths and weaknesses of my case?
• What additional information about my case do you need?
• Are you prepared to invest the money it will take to investigate, prepare, and present my case?
• Have you been successful handling similar cases in the past?

Most personal injury attorneys work under a contingent fee arrangement. This means the attorney agrees to accept a fixed percentage of the recovery. The recovery is the amount paid to the client (in this case, the plaintiff) at end of the case. Attorneys invest substantial time and money during the investigation, preparation, and resolution of a case. Because of the financial risk involved, attorneys may decline cases if they do not believe there is a reasonable likelihood of success.

Civil Rights Attorneys

The United States Constitution, federal laws, and federal court decisions protect the civil and human rights of individuals who have disabilities. These protections include access to housing, transportation, employment, education, businesses, and government services. For more information, review the:  

• Rehabilitation Act of 1973
• Individuals with Disabilities Act (IDEA)
• Olmstead Decision
• Fair Housing Act
• Americans with Disabilities Act (ADA)
• National Voter Registration Act of 1993
• Affordable Care Act (ACA)

You can also find helpful resources through the National Disability Rights Network and the ADA National Network. BIAA’s Civil Rights Preferred Attorneys will examine your case and advise you on next steps.

Financial Issues Attorneys

Brain injury may leave a variety of financial issues in its wake. A person with a brain injury may be unable to return to work, may need assistance applying for state and federal benefits, or may need help managing his or her money. In cases of long-term disability, family members may require assistance with financial and estate planning to be sure their loved one is taken care of in the future.   

A BIAA Financial Issues Preferred Attorney will assist the individual and his or her family with the financial ramifications caused by brain injury, including:

• Applying for government benefits, such as Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI)
• Guardianship
• Estate planning, including establishing a special needs trust, living will or advanced directive, and/or power of attorney

Read Applying for Disability Benefits After Brain Injury more information on Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI).

About the Preferred Attorneys Program

The BIAA Preferred Attorneys Program was established to help people with brain injuries and their families in identifying qualified legal representation. The lawyers who participate in the program are actively involved in the brain injury and legal communities. BIAA does not guarantee success or warranty the lawyers in its program. The ultimate decision of who you choose to represent you is yours to make after carefully considering all the options.