Settlement Brochures in Brain Injury Cases
The goal of every Plaintiff’s attorney is to obtain full compensation for the client and full value for the case. Very few attorneys would prefer to try a case before a jury rather than settle the claim before trial. A good settlement is almost always better than a good verdict. Settlement eliminates all of the uncertainties associated with litigation. The attorney and client retain some control over the outcome of the case as long as settlement negotiations are continuing. As a general rule the Defendant and the insurance carrier would prefer to settle the case also. Thus, it is important to maximize the opportunities for settlement as a case progresses. One of those opportunities is the manner in which the Plaintiff’s claim is submitted to the Defendant and insurance carrier.
The Purpose of a Settlement Brochure
1. Present The Plaintiff’s Case
There are three primary goals when creating a settlement brochure in a brain injury case. First, to present the Plaintiff’s case in the best possible light and maximize the potential recovery. Second, to provide the Defendant or insurance carrier with the information they need to justify the payment that the Plaintiff believes is appropriate. Too often, Plaintiff’s attorneys concentrate all of their efforts on the first goal and ignore the second consideration altogether. Providing the information necessary to present the strengths of the Plaintiff’s case does not necessarily provide the Defendant with the information it needs to evaluate the claim or the information an adjuster needs to document their file. The authority of every claims adjuster is limited in some way. At some point the adjuster will have to explain why they handled the claim as they did. They must be able to justify whatever payment they make to the Plaintiff. This is particularly true for independent adjusters.
2. Provide Enough Information To Evaluate The Claim
In evaluating a brain injury claim, the Defendant must not only consider the strength of the Plaintiff’s evidence it must also be able to evaluate any defenses that may be available. Therefore, it is important to provide enough information about the Plaintiff to enable the Defendant to fully evaluate the claim. For example, in mild to moderate brain injury cases involving brief or no loss of consciousness, claims adjusters and defense attorneys are being taught to carefully review all of the Plaintiff’s past medical records in order to look for symptoms of post-concussive syndrome that were present before the injury. They are also learning to look for other psycho-social stressors that may account for depression or impaired work performance. The carrier will not offer a significant sum in settlement of such a claim until they have satisfied themselves that there is no alternative explanation for the Plaintiff’s symptoms. Therefore, it is a good idea to include past medical records, employment records, etc. in the settlement brochure even if they are not necessary to prove the Plaintiff’s claim.
3. Demonstrate Capability of The Plaintiff’s Attorney
The third purpose of a settlement brochure is to demonstrate to the Defendant or carrier that the Plaintiff’s attorney has the ability, knowledge and competence to properly try a brain injury case before a jury. It is well known that one factor insurance carriers consider when evaluating a claim is the track record of Plaintiff’s counsel in other similar cases. The carrier will be evaluating the Plaintiff’s attorney at the same time they evaluate the case. The settlement brochure is often the first opportunity the carrier will have to evaluate the performance of the Plaintiff’s attorney.
Types of Settlement Brochures
There are three general types of settlement brochures. The type of brochure used in any particular case depends on several factors.
1. Written Brochure
The most common method of presenting a claim is through the use of a written brochure. This has been the traditional method of presenting claims to insurance carriers. Many attorney’s prefer a “demand letter” format in which the case and damages are summarized in a letter to the insurance adjuster.
2. Video Brochure
The second type is the video brochure. Video settlement brochures began as an extension of traditional “day in the life” films. Attorneys began to add case and demand summaries to the day in the life film after seeing the tremendous impact that day in the life film can have in a case. Gradually these extended day in the life films evolved into video brochures. Now it is not uncommon for a case to be presented in a video format even when day in the life segments are not included.
3. Multimedia Brochure
The third type of settlement brochure is the multimedia brochure. A new trend is now emerging as technology and computers continue to improve at a rapid pace. That is the use of multi-media brochures which include text, images, video clips and sound. They offer several advantages over other forms: first, all of the information about a case can be presented in one, compact package than can easily be reproduced or edited. Second, unlike video brochures, a multimedia brochure allows the claims representative to review the material at their own pace and to concentrate on the areas which they are most interested in. Third, it preserves the visual impact of video brochures while offering more information and more flexibility in how the information is structured. The disadvantage of multimedia is that there are still many people who are uncomfortable with computers and thus may have difficulty fully accessing the information. It is also important to make sure that the carrier has the software and hardware necessary to view the completed brochure. Software compatibility is becoming less of a problem as more and more programs have the ability to view documents prepared in other formats.
The format best suited for any particular case depends on several factors. Cost will be the primary factor in many cases. A comprehensive video settlement brochure can easily cost $8-10,000 to produce. If the available insurance coverage or the litigation budget is limited, video may not be a viable option.
Some types of injuries are better suited for video than others. If the Plaintiff has visible injuries or if their injuries have left them with obvious impairments a video brochure should strongly be considered. Conversely, if the Plaintiff’s injuries are not readily apparent, a video brochure that only includes a brief interview with the Plaintiff may not give a true indication of their impairments in a mild brain injury case. Therefore, care must be taken to ensure that the finished product accurately portrays the Plaintiff’s current condition and level of functioning.
In cases where Video brochures can be very helpful in claims where liability is at issue. Video footage of the accident scene or computer animations of the manner in which the accident occurred can conclusively establish the Defendant’s negligence. It can also be used to refute Defendant’s contentions of how the accident occurred.
Content a Settlement Brochure Needs
Because claims of mild brain injury have become more common in recent years, they have come under much closer scrutiny by liability insurance carriers. In many instances, insurers treat claims of mild brain injury with the same level of skepticism that they treat soft tissue injury claims. “If you can’t see it or show it by an objective test, then it does not exist.” The attorney must be prepared to clearly establish that the Plaintiff has suffered a physical injury to the brain that is real and that it is not simply a collection of subjective complaints that exist only in the mind of the Plaintiff.
The settlement brochure in whatever form should compare and contrast the client’s level of functioning before and after the injury. The following information should be included:
- Accident report;
- Ambulance call report; All information contained in the ambulance call report which tends to document any period of unconsciousness should be clearly highlighted;
- Initial ER records;
- Complete copy of all hospital records as well as follow up notes from any physicians who have treated the client for any injuries sustained in the accident;
- Reports of any abnormal diagnostic tests such as MRIs, CT scans, EEGs, etc.;
- A summary of the client’s medical treatment;
- The identity of all potential lay witnesses as well as a summary of each witnesses’ testimony about the changes in behavior or functioning they have observed in the client;
- The Curriculum Vitae and a brief summary of the experience of the neuropsychologist or neuropsychiatrist who diagnosed the client’s brain injury. If a vocational assessment has been made, information about the person who performed the vocational assessment should also be included.
- Photographs of any obvious signs of trauma to the head, such as lacerations, bruising or swelling;
- Documentation of any lost earnings or lost earning capacity;
- An analysis of lost future earning capacity and report by an economist setting forth the present value of any such loss in future earning capacity.
- Grade transcripts, and results of standardized tests such as CAT, SAT or IQ testing from any educational institutions attended by the client both prior to and after the injury;
- Military service records;
- Employee records or personnel files;
- Any other information which can be used to compare and contrast the client’s medical condition, cognitive functioning and performance in life, before and after injury; and
- A credible settlement demand.
- Other items which may be included:
- Photographs of vehicles involved or accident scene;
- Curriculum Vitae and summary of anticipated testimony of expert witnesses if case is not settled;
- Curriculum Vitae and list of results obtained in other similar cases by Plaintiff’s counsel;
- “Day in the Life” film;
- Abstracts or other medical literature about acquired brain injury.
While brain injury claims have become more common, there are still very few adjusters who fully understand this complex injury. Therefore, I typically include a series of articles that I have collected over the years about the diagnosis and effects of brain injury so that the adjuster can conduct their own “research” to verify that the symptoms the Plaintiff is experiencing are the result of a brain injury.
I also include portions of selected jury instructions, particularly the damage instructions. I then use the jury instructions as an outline to summarize each element of damages sustained by the client. I find that it is very effective to separately summarize each element of damages in the brochure. I also list each element of general damages separately. Keep in mind that a brain injury will effect the Plaintiff differently as the age and move through various life stages. This is particularly true for persons that suffer brain injury at a young age. Therefore, the amount of the Plaintiff’s general damages will vary from year to year as the grow older. One effective technique for summarizing general damages in a brain injury case is to use a per diem amount for general damages. That is the way the Plaintiff must live with their injury–hour by hour, day by day and year by year. The daily or hourly amount is changed based on the impact the injury would have on the Plaintiff at various stages in their life.
Settlement brochures provide a terrific opportunity to demonstrate the attorney’s knowledge, expertise and preparation to the insurance carrier while at the same time maximizing the potential recovery in the case. Many attorneys believe that the best way to settle a claim is to prepare for trial. A well prepared brochure that carefully documents the Plaintiff’s injuries will not only aid in settlement it will provide a solid foundation for a trial notebook in the event the case is not settled.