“La mitad de estas personas todavía lo llaman síndrome post-conmoción cerebral y creen que aún se necesita una pérdida de conciencia para tener una lesión cerebral.” – Steven Gursten
Bienvenido a 'Ganando el Caso de Lesión Cerebral Traumática' (Winning The TBI Case), presentado por el abogado litigante Tom Crosley. Escuche cada semana cómo Tom ofrece una guía práctica y poderosa para litigar casos de lesiones cerebrales traumáticas. Este podcast está dirigido a abogados litigantes que están listos para explorar los aspectos esenciales de los casos de LCT para representar con confianza a clientes que han sufrido lesiones cerebrales traumáticas.
Cuando las ofertas de acuerdo se mantienen obstinadamente bajas
En la conclusión de su serie de dos partes, Tom continúa su conversación con el abogado litigante de Michigan, Steven Gursten. Discuten cómo abordar uno de los desafíos más frustrantes en los litigios por lesiones cerebrales traumáticas (LCT): lograr que los casos se resuelvan por un valor justo cuando las compañías de seguros los evalúan consistentemente de manera incorrecta.
Steven comparte las razones por las que los casos de lesión cerebral traumática leve exigen un enfoque completamente diferente tanto para la presentación de daños como para la estrategia de acuerdo. Explica algunas de las tácticas comprobadas que toman por sorpresa a los abogados defensores y que resultan en acuerdos sustanciales para sus clientes.
Esta reveladora conversación explica por qué los casos de LCT (lesión cerebral traumática) son fundamentalmente propuestas de todo o nada y qué puede hacer para inclinar la balanza a favor de su cliente.
Ya sea que se enfrente a su primera mediación en un caso de lesión cerebral o busque refinar su enfoque, las estrategias sistemáticas de Steven ofrecen sabiduría práctica para lograr resultados que reflejen el verdadero valor de la lesión cerebral traumática de su cliente.
Puntos clave
- El enfoque poco convencional de Steven para presentar los daños económicos en casos de lesión cerebral traumática
- La Teoría del Patrocinio – Una poderosa estrategia de negociación que utiliza a los propios expertos de la defensa en su contra
- Cómo la comunicación regular con clientes con LCT ayuda a prevenir que surjan confusión, desconfianza y dudas cuando las ofertas de acuerdo son bajas
- La táctica creativa de declaración jurada que cambia la dinámica de la negociación antes de que comience la mediación
- ¿Por qué tener un historial de juicios es esencial para la influencia en la negociación de acuerdos en casos de LCT?
La naturaleza de «todo o nada» de los casos de traumatismo craneoencefálico con Steven Gursten
Tom Crosley: Welcome back to Winning the TBI case. I’m your host, Tom Crosley, and today we’re joined by Steven Gursten. He’s a nationally recognized trial lawyer, and Steve is Michigan Auto Law.
So I’d like to talk a little bit about, uh, trial tactics. And in particular I want us to discuss economic damages. So past medical expenses, future medical expenses, and brain injury cases.
And there’s two concepts I’d like to explore with you. One is, uh, that a lot of times the past medical expenses are relatively low in these cases. We might have $20,000 or $30,000 in medical expenses in the past, yet be asking for $10 million. Um, what are you doing with that issue? I’ve heard of some lawyers say, yeah, I’m just non-suiting past meds. I’m not even seeking that anymore because I don’t want that low anchor. Do you have an opinion on that?
Steven Gursten: Yeah, I do. I do believe it’s an incredibly low anchor. Uh, I think it hurts us. For me in Michigan, it’s, uh, I have an even more practical reason, which is, up until recently, everything was no fault. So it wasn’t even admissible. Everything was being paid by the person’s own no fault insurer. It wasn’t part of the case that you could ask for as part of the damages.
So, um, but I do think all these cases, the past medical is going to be misleading and it’s going to be a low anchor. Make sure you get permission in writing to not bring those, ’cause otherwise, if you lose, you’re gonna get a potential malpractice letter, or at least a letter from the grievance commissioner, you know, saying, why didn’t you bring ’em?
But I think if you have that talk with your client in terms of tactics and strategy, you’re almost always better served not bringing the past medical in these cases. The other thing I might add is I am getting away from life care plans in large part. And what I’m starting to do is make more of a general transferring of risk type argument in my closing arguments. And by that what I mean is I don’t wanna spend a day of the juror’s time focusing on the cost of toilet paper rolls or, you know, all the stupid things that defense lawyers do to tie you down on these life care plans and bore the jury. ‘Cause the jury’s bored, they’re getting annoyed, and it tends to go to the defense’s benefit. What I think you’re better off doing is taking a step back and saying, “Look, right now, please understand we can never come back to court. And you have heard from the treating doctors how much more susceptible, how much more at risk my client, John, is for an utterly catastrophic future. ‘Cause please know, in 10 years, if he’s diagnosed with dementia, if he has to be warehoused in a medical facility because of Parkinson’s or all these things that he is now so much more vulnerable and susceptible to because of this brain injury, we can never come back. So 100% of the risk, 100% of the risk of an utterly devastating future, lies only on John’s shoulders today. And that isn’t right, and it isn’t fair. So what we’re asking you to do is to transfer at least some of that risk of an utterly catastrophic future. To at least transfer some of that also onto the shoulders of the defendant trucking company, which is fair because they’re the ones after all, that ran the red light and caused all these injuries and put John in this position.”
And what I have found from both trials and focus groups is that if you get away from the life care plan and just get back to basic concepts of fairness—of what is fair, what is right—that you are much more likely to have the jury add an extra couple million dollars in some cases onto their verdict, because of the potential devastating future that every client with A TBI now faces.
So you just now need to make sure as a plaintiff lawyer, that you’ve got doctors that will support and give testimony based on the peer-reviewed journal articles that are out there today talking about things like significant increased risk. But if you do that, I just think it’s an easier concept for juries. You’re not spending a full day or a day-and-a-half with a life care planner on the witness stand boring the bejesus outta the jury. And I think it’s a much easier—again, it goes back to what I was saying with chronic pain. It’s an intuitive reframing of damages that is intuitively fair to people and makes sense for them.
Tom Crosley: Is there an increased risk threshold? You think you’ve got a clear to be able to get that into evidence?
Steven Gursten: I’m a little reluctant to talk about the law in all 50 states, but I’ve seen it in enough states where the case law on things like toxic tort exposure on environmental, uh, exposure cases. We have really, really strong case law and what those cases basically say—and it is analogous to brain injury—is you don’t need to prove beyond a reasonable doubt that the client is going to have dementia, let’s say in 10 or 20 years.
What you do need is a doctor to be able to say that they are now at a significantly increased risk compared to the general population because of this injury. And in many cases, depending on who your doctor is, Tom, they will say within reasonable medical certainty because the, there’s enough medicine out there and science out there that talks about that about.
So, you know, and again this is today. What’s it gonna be in three to five years from now with where they’re going with genetic testing and epigenetics and, you know, the APOE four gene couplet now and all these different things that they’re discovering that could have a huge role in our brain injury cases.
So as long as you’ve got that kind of evidence, whether forensic or through the treaters, you’re okay making it. And I have won in court, and I’ve never lost in court making that argument.
Tom Crosley: That’s great. That’s great. Yeah. And if you can show a doubling of the risk of, say, dementia; we all, if we all live long enough, we’re all gonna get dementia, almost all of us. And if we double that risk, then the dementia level we would have in our eighties becomes dementia in our sixties. And so that’s a way that I’ve tried it in, in cases where we build up a life care plan that has very little in cost between age 35 and 55, and then enters, you know, a significant cost beginning in around age 60 for in-home healthcare assisted living things.
And the argument we’re typically making is, you know, John, to use your example, John’s brain at age 60 is gonna be like it would’ve been in his eighties because of this injury.
Let me ask you though, about life care plans some more, so future meds, some more. Here’s one of the—I see these cases going two different ways and I’ve done a bunch of them.
Uh, one way is where I can prove some kind of early onset dementia or long-term negative health effect that’s going to cost medical dollars in the future. And then I’m working up a really nice life care plan around that concept. But also just as frequently—more frequently, in fact—the life care plan won’t address future medical needs, or at least no significant medical needs. Maybe it’s headache prophylaxis or something like that.
And so sometimes we, we have underwhelming future medicals in these cases as well. Especially if it was a mild injury, I can’t show a bleed within the brain or the other things that tend to make it more likely to be early onset dementia. So what are you seeing in those cases and how are you handling it for future medical?
Steven Gursten: Very similar to past medical. I’m not bringing them. I had this mathematical formula in my mind, uh, when I try these cases, which is if they like and believe your client, and if they believe the injury, then you’re go. They must also believe the consequences, the future increased risk of that injury. And I think we are sometimes much better served by making that argument without life care plans because a jury’s imagination of what the damages will be and what that future will hold is so much greater than what a conservative life care planner who’s afraid of getting cross-examined for six hours might give you.
So I just handle it that way. But the key, the missing component to this is you have to talk about what the future is, and I think a lot of lawyers in brain injury cases, they don’t do that. And I don’t understand why, because there’s so much great medicine out there for us to talk about in terms of just every day it seems like there’s another peer reviewed journal article coming out about connections to, you know, increased risk of seizures, increased risk of dementia, Alzheimer’s, stroke, you name it. Everything I just said, there’s peer-reviewed journal articles that support.
So if you can have patient, sympathetic, caring doctors and forensic experts who are familiar with the current, the latest science and medicine—and that’s so important by the way, because, you know, going back to making fun of neurologists, like half of these guys are still calling it post-concussion syndrome and think you still need a loss of consciousness to have a brain injury. You know, they’re gonna kill your case before you ever get off the ground. But if you are able to. Create a situation where your client is getting the help they need from patient, curing doctors who do understand the medicine, then I think you’re sometimes much better off sidestepping the life care plan entirely.
Um, obviously if it’s trucking case and you’ve got major physical injuries as well then I would throw that in there. But if it’s a brain injury or mostly just a brain injury case and you run the numbers, you do the math and you see how it plays out, I just think sometimes you’re better off sidestepping the whole life care plan issue.
Tom Crosley: Right. Steve, what advice do you have about how to settle these cases? Because in my experience, brain injury cases are harder to settle if they’re a mild TBI, unless you find yourself on the courthouse steps.
Steven Gursten: So it is incredibly difficult to settle these cases. Um, adjusters can be so cynical, so skeptical. Defense lawyers are paid not to wanna recognize the brain injury case.
There are a couple things that I do believe can really help. The first, which I think everybody knows is you have to have a track record of trying these cases, uh, for them to take it seriously.
And if I were an insurance company. If I were dealing with a plaintiff lawyer that didn’t have that track record, I probably wouldn’t be putting very much on these cases either, because the reality is—the ugly truth is—uh, and what would you say, Tom? 80, 90% of plaintiff lawyers out there? Even plaintiff personal injury lawyers out there? They’re afraid to take these cases. They don’t try them. They settle them for basically nuisance dollars beause they’re afraid that they’re gonna get no cost. ‘Cause these are difficult cases.
So number one, you have to have a track record and try these cases. What I think helps in terms of settlement the most is, have you ever heard of the term sponsorship theory?
Tom Crosley: Uh, no. Tell us about it.
Steven Gursten: Okay. So sponsorship theory is one of the greatest weapons we have as advocates. And what it essentially boils down to is this: if I, Steve Gersten, say something, the jury may or may not believe what I’m saying is true. They’re gonna look at me. I’m a plaintiff lawyer. They don’t necessarily believe what I’m saying to them because a lot of what I’m saying is counterintuitive. You know, the normal MRI, all those things we were talking about earlier.
If the defense’s hired insurance medical exam doctor, their hired expert, says that exact same thing, a jury is far, far more likely to believe it’s true and to accept it as true because that evidence now is sponsored by the defense because it comes from the side that hired that expert. So they are much more likely to put weight on it and believe it’s true, and that works for juries. But guess what? It also works for insurance adjusters. So, in a lot of these cases, what I will do is I will take the discovery deposition of the defense expert and everything that scares me, you know, about this case starting from no loss of consciousness to normal MRIs, to the Glasgow Coma Scale, to mini mental status exams to the gross neurological exam. You name it. I’ll go through each one and I’ll just ask the expert that the defense has hired, “Doctor, is it true, for example, that someone could have no loss of consciousness and have a brain injury? That someone could have no loss of consciousness and have a very serious brain injury? That you and I both know that there are examples in the literature of people who have had no loss of consciousness, who have died?”
I’ll talk about people like Natasha Richardson and talk and die syndrome, and you go through each one of those things and you get those admissions, and sometimes you’ll have to ask it two or three or four times if you’re dealing with a, you know, a, a more slick defense expert. But at the end of the day, what you are trying to do is go to mediation and every one of those defense talking points about why they don’t wanna pay you on your case, you now have their own expert saying that that is not necessary and that you can still have a very serious and disabling brain injury, even with a normal Glasgow Coma scale or what have you.
And when you do that, what you’re doing is you’re getting these cases out of that defense groupthink, which is so dangerous for us as plaintiff lawyers, where they all kind of—like piranhas, they reinforce each other. “Oh, there’s no loss of consciousness.” And they wanna put more weight on it than it actually deserves.
And what you’re doing is you’re blowing up that evidence right there and saying, you guys have a real problem because your own expert is gonna say that you don’t need any of this. And when you do that, what you’re doing is you’re really taking away all of their defenses on the medicine. And now it’s just what are damages?
So I think sponsorship theory, especially in the context of TBI, is incredibly valuable because what it does is it allows you, Tom, or me, as an advocate, to set ourselves apart from the 99+ percent of cases they have, where plaintiff lawyers either don’t have the knowledge or the skill, or they’re just too lazy to take these depositions.
Um, and number two, it really helps to destroy that whole defense groupthink where you’re destroying all their defenses before you even step foot into mediation. And I just think that, probably more than anything, has really helped me settle these cases for much bigger dollars at mediation, um, when other lawyers think it’s impossible to settle these for those numbers at mediation.
Um, the other tip I’ll give you just real quick is when you take the defense expert; a lot of these experts, they’re defense horses that do, you know, 99% of their cases are defense. So I’ll ask a friend of mine, for example, that does worker’s comp, if I can go in and take his discovery dep in a comp case and I’ll show up and, and in workers’ comp, especially if the defense lawyers are normally not very well prepared, you know, they’re not gonna spend time coaching and, you know, working with the expert.
And I’ll just sit there for three hours and just ask, you know, questions about the medicine and the science on brain injury. I’ll get an incredible transcript of clean admissions that I could then use in now my tort case, uh, where I don’t have the defense lawyer who spent an hour and a half saying, “Whatever you do, whatever you do, you cannot concede brain injury to Gursten.
So I’ve already blown up the case before they even know about it. Exactly.
Tom Crosley: You’re finding another case where it’s the same defense expert. You’re going and volunteering to take that guy’s deposition in a different case so you-
Steven Gursten: I’ve done that for 20 years and it works brilliantly.
Tom Crosley: I love it. You’re setting him up like a bowling pin and then you’re knocking him down later.
Steven Gursten: Sure. Because imagine the answers you’re gonna get and how much cleaner they’re going to be when you don’t have the defense lawyer in your case, prepping them for a couple hours before that, that cross-examination.
Tom Crosley: I love that nugget. That’s a good one. So, my observation about trying to settle these TBI cases, especially the mild TBI cases is similar to, uh, medical malpractice cases, which I don’t do anymore, ’cause we changed our laws in Texas a long, long time ago to, uh, put a $250,000 cap on the non-economic damages and the cases cost that much to prosecute. So a lot of people got out of it.
But what I recall from those cases was they never settled until after every expert had been deposed. And when they settled, they settled really the week before trial on the courthouse steps, and I see a similar pattern with mild TBI cases. They tend not to believe whatever it is we are trying to prove until after we’ve gone through all the motions to produce the experts, have them testify and then cross-examine the defense experts. And until we’ve done all that, they just tend to believe the defense mantra of, “Yeah, I’m not sure this is a real injury.” And so it’s a very common pattern in my cases, at least, that there will be some relatively low offer, a six figure offer up until a week or two before trial. And then when it looks like we’re serious about going to try the case, the closer that trial date gets, the more likely the case is settled. And typically they’re settling on Friday afternoon before the Monday trial if they’re settling. That’s what I’m seeing.
Steven Gursten: Yeah, I can’t disagree. I think, um, financially retained counsel is always much more incentivized to take every deposition than house counsel. But I also think with brain injury cases especially, there’s another thing going on there which has reversed anchoring. We’re dealing with clients who are much more emotionally volatile and they can’t sometimes handle the stress well and they implode.
And the longer defense lawyers can create that situation of tension by offering very low numbers, the harder it is for a lot of these plaintiff lawyers—excuse me, for a lot of these plaintiffs, for our clients. Unless you’re explaining, and really explaining what they are doing, what they will do ahead of time or what to expect, you know, there’s a lot of distrust that they can create between the lawyer and his client by making these ridiculous low offers.
And, what they’re trying to do in a lot of these cases, Tom, especially when you’re dealing with general practitioners and you know, solo small firm lawyers, is you’re trying to create that seed of distrust where the client is really starting to second-guess their lawyer. You know, what’s wrong with my lawyer? What’s wrong with my case? Why are they only offering this? And it’s very effective. And the more you’ve got a brain-injured client who’s got issues with, you know, emotional volatility and disinhibition and depression, the more it works. So I just think this is, again, you know, at the end of the day, all these cases require a lot of handholding, a lot of communication.
I mean, listen, we’re in this business ’cause we care, but these cases especially require a lot of time. And you better be committed to your clients and really wanna help ’em. And you need to explain ahead of time how negotiations and settlement discussions are going to work because it can be incredibly frustrating.
Listen, if it’s incredibly frustrating for us. Imagine what it’s like for our clients.
Tom Crosley: All right. Yeah. And, and then the, the range, if we’re give, if we’re honest with our clients, the range of outcomes we’re giving them is so broad.
Steven Gursten: Yeah, these are all or nothing cases at the end of the day, especially with mild TDI. You know, if the jury believes it, you’re gonna get a really good verdict more often than not. But there’s so much between defensive attribution and juror’s skepticism and just all the problems you have with an invisible injury these days. You have to know that you’re gonna get your share of no causes too. That’s part of the business.
Tom Crosley: Right. The same evidence that could yield a $200,000 verdict could also yield a $10 million verdict. That’s the tough thing about these cases. That’s why I think insurance companies don’t like them. It’s so hard to evaluate.
Steven Gursten: Well, you know, it’s funny. We have a bad faith case right now where the verdict was $14 million. The defense offer was $25,000. These are completely all or nothing cases.
Tom Crosley: Yeah.
Steven Gursten: Um, and listen, I, I’ve lost a lot of cases. I thought I was gonna win, but when the, the jury does believe the injury, more often than not, you’re gonna get a very, very substantial verdict because now you’re talking about how someone’s life and their future is completely changed because of this brain injury.
Tom Crosley: Steve, thank you so much for sharing your wisdom with us today. Lots of great nuggets. Uh, if somebody wanted to reach out to you and get in touch with you, what would be the best way to do that?
Steven Gursten: The easiest way is probably just reach me out through my website, which is Michigan auto law.com, and I’m always happy to talk and help if I can.
Tom Crosley: All right. Thanks so much, Steve.
Suscríbase y manténgase conectado
Conéctese directamente con Steven Gursten: https://www.MichiganAutoLaw.com
¿Está listo para llevar su práctica de LCT al siguiente nivel? Suscríbase a nuestro boletín informativo "Winning The TBI Case" en www.crosleylaw.com/podcast para obtener estudios de casos exclusivos, recursos y estrategias de juicio que no encontrará en ningún otro lugar.
Únase a nuestra comunidad de abogados litigantes que se niegan a conformarse con resultados promedio. Suscríbase a Winning The TBI Case en Apple Podcasts, Spotify, YouTube o dondequiera que escuche sus podcasts. Y recuerde, no solo escuche las estrategias, ¡impleméntelas!