Sleep Better at Night With Answers to Your Top Questions on Virginia Brain Injury Claims

Experiencing something as traumatic as an accident in Chesterfield County can leave your head spinning with questions and uncertainty. Get the answers you need fast in this FAQ series from Richmond brain injury attorney Kevin Mottley.

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  • Do I need a lawyer?

    Do I need a lawyer?  Every client who comes through my door has asked that question prior to picking up the telephone and calling my law office for an appointment.  It is, of course, a very good question that every person with a law-related issue should ask.  It is a fundamental question that leads down two very different paths.  Either you hire a lawyer to help you or you do not.  Depending upon your answer, the two experiences you will have are completely different.

    The problem, in my view, is not that people fail to ask this question.  The problem is how people answer it.  In my experience, people do not spend enough time thinking about whether they actually need to get a lawyer involved in their situation.  And even when they do make that decision, they run out as quickly as they can and hire the first lawyer who agrees to take their case without doing a lot of homework.  (How you choose the best lawyer for your case is a topic for another frequently asked question.)

    When a person who has been injured asks me whether I will agree to take their case, this begins an evaluation process at my firm during which I determine if the matter is a case I would be willing to handle.  Not every legitimate personal injury case requires a lawyer to settle it.  Particularly in cases that: (a) involve clear liability on the part of the defendant and (b) do not involve significant medical bills or other out of pocket expenses (damages), it is often better for the injured person to resolve (settle) their case directly with the other person's insurance company without using a lawyer.  Despite what many personal injury lawyers will tell you, settling your own case without a lawyer is not only possible, it is often better for the injured person.

    Why is that?  The answer is attorney's fees.  In the case of a person who has been injured, lawyers typically will earn a fee that is calculated using a percentage of the recovery (the settlement or judgment amount).  This is called a "contingency fee" because the lawyer's fee is not guaranteed.  It is "contingent" on (dependent upon) the outcome of the case.  A typical contingency fee is 33%, or one-third, of the recovery.  So, if you have a case with low "special damages" (such as medical bills, lost wages, other expenses) and it is clear that the other side is responsible for the injury, you should at least try to resolve the claim directly and save on the attorney's fees.

    So, what damages are significant enough to get an attorney involved in an injury case.  Every lawyer is different.  In my own law practice, I typically require medical bills in excess of $3,000 before I will agree to consider a case.  But even that depends upon the type of case, how the injury is still impacting the person, and what happened to cause the injury.  It really depends upon the circumstances.  So it is best to at least establish contact with a lawyer to discuss your matter.

    The foregoing comments apply to personal injury cases.  If your case involves another situation, like a business dispute or a family estate dispute, then you most certainly will require an attorney to consult with you on your case.  Cases in these two categories are very unique and can be very complicated, and it is highly unlikely that you're dealing with an insurance claims representative on the other side.  Thus, the issue is not as much about resolving your case for a fair amount as it is understanding your rights and the other party's duties and obligations to you.  Again, these situations tend to be so unique, case-specific and complicated that you really need a lawyer experienced in these areas to help you.

  • Is a “concussion” a brain injury?

    A concussion is a type of traumatic brain injury.  It is normally described by health care professionals as a “mild” traumatic brain injury because concussions are normally not life threatening.  Even so, their effects can be serious.  Symptoms may go on for weeks and may not even appear until an extended time after the accident.

  • How common are traumatic brain injuries?

    A traumatic brain injury (or “TBI”) is a serious public health problem in the United States according to the Centers for Disease Control.  According to the CDC’s research, each year, TBI contributes to a significant number of deaths or permanent disability in the United States.  It is estimated that, each year, at least 1.7 million TBI’s occur in the U.S., most of which are considered “mild” traumatic brain injuries caused by a concussion.

  • How do you, as the lawyer, present my brain injury case to the jury?

    Successfully presenting a mild traumatic brain injury case to a jury is all about demonstration and corroboration.  What do I mean by that?  Well, if a mild brain injury case is going to trial, it is for one of two reasons.  First, the insurance company and its lawyers do not believe that the plaintiff actually has a brain injury.  Second, the insurance company and its lawyers do not believe the plaintiff should receive money for many of the future rehabilitative expenses that will be necessary to help the plaintiff successfully recover and live a normal life.  So that is the battleground in the case.

    They say that “seeing is believing.”  When it comes to proving that a brain injury occurred, I do believe in that saying.  To win, you must demonstrate the injury to the jury.  To demonstrate that the plaintiff does have a mild traumatic brain injury, we use numerous demonstrative exhibits and other visual exhibits (such as photographs) to show the severity of the impact.  We also use illustrations and models of the skull and brain, and we have the plaintiff’s doctor visually show the jury exactly where and how the plaintiff’s brain was injured.  Every case is different but, in every case, the trial lawyer wins by successfully demonstrating the existence of an injury.

    Equally important to the plaintiff’s success is having friends, family, coworkers, and physicians come in to court and tell the jury that they have personally witnessed and observed a change in the plaintiff since the accident.  This is incredibly important to a successful case.

  • How do you decide whether to take my brain injury case?

    I have certain criteria that help me decide whether to take a personal injury case.  Here are some of the most important questions I ask when making this decision in a mild traumatic brain injury case:

    • Does the potential client have an unresolved, symptomatic mild traumatic brain injury, and is this injury supported by the potential client’s medical records?  In other words, will a doctor who has examined and treated the potential client be able to testify that the person has a brain injury?
    • Does the potential client have friends, family members, co-workers, or doctors who have observed the plaintiff and who are willing and able to come to court and to the jury that there has been a notable change in the plaintiff since the accident?
    • Was the brain injury caused by an accident, and can it be successfully demonstrated to the jury how the injury was caused by the accident?
    • Who is the potential defendant, and does that defendant have sufficient assets or insurance coverage to satisfy a significant judgment for money damages in the case?
    • Who caused the accident, and was that person negligent?  If the potential client was partly to blame for the accident, this is a problem because Virginia law would bar the injured person from recovering any money from the potential defendant, even if the defendant was also negligent.

  • How do I find out if a power of attorney is being misused?

    Not everyone has a right to find out how a person has been using a power of attorney document.  Only certain people have that right. 

    First, if you are someone who represents the person who gave the power of attorney (referred to as the “principal”), such as an agent under another power of attorney, a guardian, a conservator, or another fiduciary, or if the person who gave the power of attorney has died, if you are the personal representative (executor) or successor in interest under the person’s estate, then you may demand that the person who had the power of attorney (also known as the “agent” or the “attorney-in-fact”) disclose to you all receipts, disbursements, or transactions that the agent engaged in on behalf of the principal.  The attorney-in-fact has 30 days to respond.

    Second, if the principal is currently incapacitated, and you are someone who is a close relative, beneficiary or caregiver for the person, then you may demand that the agent disclose all transactions to you in which the agent has used the power of attorney to act on behalf of the principal.

    There are time limits applicable to these requests and to the period of time for which the agent must disclose receipts, so you will need to have an attorney review the statutes for you and explain your rights to you.

  • How do I remove a power of attorney (an attorney-in-fact)?

    If you are a person who is entitled to obtain information from  an agent (an attorney-in-fact) and the agent fails or refuses to give that information to you, this is a basis for filing a complaint in circuit court to remove the agent.

    In addition, if you are the principal, a close relative of the principal, someone entitled to make health care decisions for the principal, the principal’s caregiver, a guardian, conservator, representative of the estate of a deceased principal, a person who is asked to accept a power of attorney, or a beneficiary of a principal’s estate, then you may petition a circuit court to review the agent’s conduct and to grant appropriate relief.  If it be shown that the agent has breached his or her duties as attorney-in-fact, then the court may order the removal of the agent.

  • What is undue influence?

    To raise a presumption of undue influence of a testator in making a will, the evidence must show three things.  First, that the testator was “enfeebled in mind” when the will was executed.  Second, that someone benefitted by the will stood in a position of trust with respect to the testator or that the testator depended upon the person.  Third, that the testator had previously expressed an intention to make a contrary disposition of his or her property.

  • What are the grounds for contesting a will in Virginia?

    Grounds for contesting a will under Virginia law include the following:

    • the formal requirements for making a will under Virginia law were not performed properly, rendering the document invalid as a will,
    • the document was not made with “testamentary intent,” meaning that the document sought to be admitted to probate as the decedent’s will was not intended by the decedent to be his or her last will,
    • the person who made the will lacked testamentary capacity to make the will,
    • the person who made the will was the victim of undue influence or duress at the hands of someone who is benefitted by the will, and
    • fraud.

  • What degree of testamentary capacity is required under Virginia law to make a will?

    You must understand that showing someone lacked testamentary capacity to make a will under Virginia law is exceedingly difficult.  A person making this claim must show, by strong evidence, that the person making the will did not have mind enough to understand the nature of the business in which he is engaged, to recollect the property being disposed of, the objects of his bounty, or the manner in which he wishes to distribute his property. 

    It is not enough to show that the person did not have the same quality of mind that he previously had, that the mind is debilitated, or that the testator is eccentric.  Just because someone lacks the mental strength and qualities to transact business affairs does not mean they cannot make a will.