Invisible Injuries, Visible Stories: The Importance of Witness Testimonies in Brain Injury Law

0:00:09 - Shane Smith Hey, I'm Shane Smith from Shane Smith Law. I'm here today with John Mobley and we are doing Mind Matters: Navigating Head Injuries and Concussions. John is one of the attorneys here from the concussion and brain injury group here and we like to discuss topics around concussions and people who suffer a brain injury. John, thanks for being on the show today. I know we were talking a little bit about somebody who suffers a brain injury. What do we do to get the most out of them in front of a trial, basically, or the most recovery, and to really document that injury? What is one of the best ways to do it? Because up until recently, you couldn't see a brain injury, right, it wouldn't show up on a test. If we did anything like that, right, correct? Yeah, and I know we've we've discussed previously like DTIs, which is a test that will show some brain injuries, but some people are still skeptical of that. So what is the best way we show the brain injury to a jury?

0:01:01 - John Mobley Absolutely Shane. So you hit the nail on the head. We use a lot of fancy scientific tests and diagnostics and specialists to confirm these brain injuries and it's stuff that you know will, we use sometimes to dazzle and improve the injury to the jurors, but unfortunately that's not always enough, and the reason is simply because these are invisible injuries. So we need to go a step further.

0:01:26 - Shane Smith I think we started using more of the technology stuff to show injuries and stuff because, honestly, juries expect some of that. Just, basically, I blame TV and movies, because in the TV shows and movies they've always got all this fancy stuff, so we've had to incorporate some of that. But, like you say, it's still an invisible injury. So how do we? We? And even looking at it, that doesn't show the impact it has on a client, right, because I can show loss of memory and and emphasize that, but nobody really knows what that mean unless we get somebody who can explain it, right, that's exactly right.

0:01:55 - John Mobley And you, you mentioned what jurors expect us to show them and prove them these days has risen. It's kind of like what they call call the CSI effect, where everyone wants to see the fancy science behind stuff and they want to be dazzled as jurors so that they get to see the big brain imaging, the 3D models. People expect that these days when we're trying to explain the injuries that someone sustained. But, shane, you're exactly right, it's not always the be all end all, and the reason is is that sometimes someone could have all sorts of injuries in their brain but they're experiencing no deficits whatsoever or they somehow, miraculously, are completely fine. Now, those cases are few and far between. Usually, when you sustain a bad injury, you're going to see some sort of symptoms and deficits, but that's why we like to do an emphasis on before and after witnesses, to couple with some of the clinical findings and the imaging that we get.

0:02:52 - Shane Smith So we want to have the expert, we want to have the fancy stuff, the fancy tests that you know, everybody thinks you need to have these tests to confirm everything. But you said before and after witnesses. So what is a before and after witness? Because when I hear witness, I think somebody who saw a crime or saw something. How does this relate to that?

0:03:08 - John Mobley So a before and after witnesses in the context of our brain injured clients, is going to be someone that knew who our client was before the accident and who they were after the accident and the reason that that is just so so important to document. We have all sorts of reasons, but the main one being that we can actually see what the accident took away or changed, usually for the worse.

0:03:34 - Shane Smith So this before and after witness is going to be somebody who knew me before I get into the traumatic event normally a car accident. I've suffered a brain injury and they knew me afterwards as well. Right, they can come in and say, yeah, this is what's different, that's exactly right.

0:03:49 - John Mobley And the reason that that's so powerful is because it gives us firsthand knowledge and experience from who this person used to be and who they are now, because sometimes it's not as easy as us just being able to ask our client. You may think, well, just ask your client, well, they can't always tell us or they don't know what's happening.

0:04:08 - Shane Smith And what do you mean by that? They can't tell us if they don't know what's happening. Talk about that.

0:04:12 - John Mobley Because of their brain injury. They may not know that they're being more irritable. We may have to go and talk to a spouse to say know the most peaceful, caring patient person? And now they are not. They scream when something goes wrong. They lose their cool. They're no longer completely patient with a child when they mess up. And these are things that our clients are not even aware that they're doing.

0:04:39 - Shane Smith And I've had clients not clients, but client spouses tell me that you know, before, in particular, you talk about patients or emotion control, you know they were like, yeah, before the accident my husband was a very patient person, you know, rarely raised his voice, really got mad, and afterwards, though, they've got sort of a trigger fuse or a short fuse. They're like that's totally different and out of character for them and, honestly, it's not the same person.

0:05:02 - John Mobley I'm married right, you're exactly right, and that is why these cases we treat them so seriously because losing something like your ability to control your emotions and have good attention span and not lose your cool on family members you think about the lifelong impact that has? It could be detrimental to the happiness of your relationship, your marriage, your relationship with children, friends. You may no longer be a person that people want to be around after a severe brain injury, and what is that worth? I? think it's worth a lot for your friend groups to evaporate for your relationship with your significant other, someone. Something that was going great before the accident, to all of a sudden, now you're getting served with divorce papers because they can't live with you anymore.

0:05:49 - Shane Smith It doesn't even take a huge change to really impact your salary relationship. I mean, if you lose your ability to be patient, that alone is going to impact you at work. It's going to impact you with you, like everybody in your friend circle and, like you say, nobody wants to hang out with the jerk, right? Right, I've seen it where in the beginning after an accident or a brain injury, everybody is very supportive, you know, but after a while that sort of wears off and people just get tired of you being difficult to be around, right? I mean, they get worn down and they're like well, john was in the accident, but it's been a year Now. It's just a jerk as opposed to injured. I mean, how often does that come up?

0:06:24 - John Mobley Yeah, I mean that which you just mentioned, where everyone kind of flocks around the person in this traumatic experience sometimes a terrible car crash everyone's there, the second cousin sometimes you know extended family, kids, but you know, as time goes on and on and this is a permanent injury. You know the the kind of the novelty can wear off for some people and then people start to fade away, disappear and either the client is left and it's a very lonely experience, or just one spouse taking care of them, or maybe a spouse and a child they have to bear the brunt of that and taking care of the person that has the brain injury, just as we're going to go into a lot of detail in this podcast.

0:07:03 - Shane Smith But you know, but you talked about the spouse or the family member taking care of somebody I know we've discussed in the past. There are definitely resources and groups out there where spouses of brain injured people can get together with other spouses of brain injured people and basically support each other and talk about everything they're going through with people who understand right.

0:07:21 - John Mobley Yeah, and those groups are absolutely gold for families that have had people sustain brain injuries, and the reason is is because you find, like situated people or people that have been through your exact same experience, that kind of know the ins and outs of it. They know what needs to be done, and that's very important because you can relate to those people you can get support that you wouldn't otherwise get, because no one can possibly understand the situation where you're in. When you have a brain injury or you're one of the brain injured person's loved ones. It's a it's a very uh, kind of it's a lonely experience.

0:07:59 - Shane Smith I was going to say, and I I've even known some people who've had a brain injury and they in the beginning they want nothing, you know, they just want to hang out with their old friends. But as those friends trickle away, they found some solace and comfort in hanging out with other people who've got a brain injury, which to me it seems like a volatile relationship. But it's people who still understand everything and I think they're more forgiving because they also do the same kind of stuff. That's right, that's it giving because they also do the same kind of stuff. That's right and we definitely would encourage any of our listeners who are dealing with this, you know, contact one of the support groups, because I think it can really I don't want to say change your quality of life, but helps you get through this difficult situation.

0:08:37 - John Mobley Absolutely. I couldn't stress that enough. I mean, the resources that are out there for people are abundant. You just got to know where to look and they can definitely improve in otherwise very tough situation.

0:08:50 - Shane Smith For any of our listeners. If you're having trouble finding a support group, email us at info at Shane Smith Law. We'll be happy to find a local group and put you in. Check the link on our page. We try to list some brain injury support groups on there as well for our listeners, for them and their spouses. Now back, though, to our before and after witnesses. When we talk about this thing in invisible injury and these before and after witnesses can really talk about it do we run into the same situation where people don't believe these before and after witnesses or the defense attacks them? Are they as open to it as, say, our client themselves?

0:09:23 - John Mobley The defense is always going to attack, you know, any witness. It's their job. So they're definitely going to attack our witnesses to some degree. That's why we always say when talking to our clients listen, the more witnesses you give us, the better. So you know, obviously if a brain injured client's spouse or direct kin or family member is testifying, you know a jury may think well, that's just because they're their spouse, they may just say whatever's going to benefit the brain injury client. But you know that's why we try and reach out, even beyond family and friends sometimes. Sometimes we're looking for coworkers, coaches, the mailman. Believe it or not think about if you're a juror and you know theor and the mailman says Mr So-and-so used to always come and greet me and we'd always chit chat whenever I'd come up to his door just a little bit and then I heard he was in a bad accident and he never comes to the door anymore. I never see him outside guarding like he used to. I never see him doing anything. Frankly, those are things that's. Those are things that we see sometimes that are very powerful, because you know what is it to this mailman?

0:10:30 - Shane Smith Right. Why would he lie Right Right?

0:10:31 - John Mobley So we don't always find those witnesses, but we certainly ask about them because they're just so powerful and they truly provide an inside behind the curtains. Look at what this person is going through.

0:10:43 - Shane Smith Your before and after. Witnesses don't have to be huge people that, you see, I don't wanna say every day, but they don't have to play as big a role in your life as like your spouse or your kids. The mailman would be good. A store clerk used to go see the barista where you get your coffee every day. Any of those people would work and sometimes would be better.

0:11:02 - John Mobley There's definitely an argument that they would be better just because obviously a family member, someone who sees you on a day in, day out basis, is going to give us a better account and rundown of all your symptoms. You know like a spouse, someone who knows you inside and out. But you know there's other people like these you mentioned the barista and the mailman or the mail person. They're going to also give us, you know, maybe one or two of the long list of brain injury symptoms and really hammer it home that they're absolutely suffering from this. Right, they may not know that you know the full list of everything that that person is going to, but they at least knew our client before the accident and after the accident.

0:11:39 - Shane Smith And then again talking about those small or big changes and, like you say, it's hard to attack them. Right, Because why would they lie? What are they getting? What's your mailman getting out of testifying and saying you won't come talk?

0:11:50 - John Mobley to them anymore. That's right. So they really do make the strongest witnesses.

0:11:53 - Shane Smith So we talked about spouses. We've talked about family, friends, neighbors, mailman. It's a difficult issue. What about a strained like former friends who were friends with you and now they're not? Or ex-spouses, because I know there's a lot of ex-spouses out there. Would we ever use them as before and after witnesses?

0:12:10 - John Mobley Believe it or not, Shane, yes, and we have. I can count numerous times where I've had ex-spouses, either ex-girlfriends, ex-boyfriends, ex-wives, ex-husbands, basically step up and either the relationship fell apart sometime after the accident due to the injuries or it was in the process of falling apart before the accident. But they keep in touch and they provide incredible witnesses because, truly, then, you know, as a juror, what does this other person have in it. So you know that you're getting good information, authentic information, and, believe it or not, some of these clients that have exes will step up and be like look, you know. As much as we don't get along now, I cannot deny the fact that we have seen some huge changes since the accident and I love when that happens because I know that I've got a really good witness that's going to speak the truth that my client is living with every day.

0:13:05 - Shane Smith Like we said, a lot of ex-spouses have a volatile relationship. I mean, clearly their marriage broke apart and yet when they come in and say, yeah, it was okay before, now it's not, or this was the straw that broke the camel's back, I think that's hugely powerful. Right, a hundred percent. What are the big symptoms his before and after witnesses are going to testify to? What are the big symptoms is before and after witnesses are going to testify to.

0:13:27 - John Mobley What are the big stuff they're going to talk about, right? So we've gotten through the hard part of identifying the before and after witness.

0:13:33 - Shane Smith Let me ask you this, john, too what if you have a client who says look, I don't have anybody. What do we tell them to go find? I mean, how do they go get this person? How do they? What do they need to do?

0:13:43 - John Mobley Right. So I mean, how do they go get this person? How do they? What do they need to do, right? So it's it's very rare that we have a client that has absolutely nobody. That's why we push out to like the male person or, you know, a barista at a local restaurant that they always go to because, you know, unless someone is a complete hermit, shut in beforehand after the accident there's going to be someone out there that we can hopefully find. We may not find the best lineup of witnesses, but there's going to be someone out there that knew our client before the accident. Now we may not have as big of a list as someone that has a huge family and is very socially active, but it's very rare that we couldn't find someone.

0:14:19 - Shane Smith So I mean, and I know, when we've had to dig through and find before and after witness, sometimes we've been like, okay, over the last 30 days, tell me every place you've done or everything you've done and sort of walk them through this whole process to try to find people we can talk to. And that would be one way somebody could do it right. They could talk about the last 30 days, everything they did, or even a week. You know right, who all do you interact with every week? Because, like you say, nobody's got nobody right. I mean. So everybody has somebody and they may not be able to testify to everything, but they could certainly testify to one or two things, even if it was as small as, yeah, you see him every day and not only see him once a month. Right, that's a change. Or we had a witness on one case where they said, yeah, before the accident he was sitting in the stands with his kid watching baseball. He was sitting in the stands with his spouse watching baseball. After the accident he couldn't sit in the stands because it was too claustrophobic for him. He had to stand on the periphery and sort of watch it and he couldn't even be there that long. So everybody can testify about it, or everybody has somebody who can testify and then wait to this right.

0:15:16 - John Mobley Yeah, I think that's the case, and some of those examples that you gave are absolutely examples that we've struggled with or gone through in our case to track down these witnesses, because it's such an important, important part of the case that you know we just we got to do it.

0:15:32 - Shane Smith What are the big things these witnesses are going to testify to? What are the main areas?

0:15:37 - John Mobley Right. So after identifying the before and after witness, which is, you know, the usually the longest portion of the process, you know, we want to make sure that the before and after witness is giving us the information that they see, and what we want to know is a lot of the symptoms which we've talked about here on this podcast before is going to be, you know, things like issues to your memory, comprehension problems, mental processing speed we talked about a little bit before but that restraint and patience thing, self-control, essentially are huge ones. but and, and those are just like the big personality trait ones that make a person who they are. You know, besides that, um, the obvious ones that people would think about when they're thinking of a brain injury is going to be things like headaches, changes in your vision, ringing in your ears, dizziness, nausea. Those are the big, immediate ones. So what we like to do is, when we're talking to these before and after witnesses, you know, sometimes we'll be like well, what have you seen in relations? And sometimes, I say nothing but a lot of the times I say, you know, come to think of it so-and-so, the brain injury client would complain about, you know, not getting sleep that night or being tired at work, because every time he turns off all sound he hears the ringing in his ears which impacts our ability to sleep and stay asleep, and that's, that's a very common injury after after a brain injury. So these are things that we like to address with the witnesses.

0:17:10 - Shane Smith And and the way you describe that. You know the him talking, the client talking about the ringing in the ear, so that seems like a very specific instance. Which one do we prefer?

0:17:19 - John Mobley Do we prefer you know more general, like, yeah, I have a terrible memory or a specific instance associated with, like, you have a terrible memory or a specific instance associated with having a terrible memory, I guess Definitely, you know we're humans, so stories and storytelling resonates more with us, and that's definitely what we're looking for when we're trying to get this information out is examples and stories, like you said, versus just if I, as the attorney, am only getting a list of what seems to be like diagnoses or symptoms. Yeah, that's not obviously as illustrating of what the person's going through versus like well, you know, this person used to be, let's say, the before and after witness was, was the the employer or the boss? And they're saying well, you know, the brain injured victim, our client, used to be a top earner. They would always be five minutes early to a meeting. Now, all of a sudden, they're. You know, ever since this accident they've started missing meetings. They miss calendar events. He went from the top salesperson down to about the eighth salesperson. He's, uh, no longer completing his task on time and we've been getting complaints. Those are stories versus symptoms. You know the symptom there may be inattention or memory issues. Those are the symptoms. But what really brings it out and fleshes it out and allows me, the lawyer, to paint the picture of the injury for the jury, is stories like that, because that's what we're doing we're storytelling.

0:18:41 - Shane Smith And yeah, and the witness is storytelling and I feel like from a defense lawyer, attack side is it's even harder. It's hard to attack a specific story you know somebody talks about, hey, he didn't have attention to detail. I can try to find ways to prove he really does have attention to detail. But if you tell a story like hey, he's always late or he's missing tasks, or he dropped from top salesman and number eight salesman, it's hard to attack that. I guess it seems legitimate, seems real to me.

0:19:07 - John Mobley You couldn't be more right because, listen, a defense attorney and once again, this is their job they're always going to try and hire one of the biggest, most expensive defense experts to say exactly what they want them to say, or hope that they say exactly what they say, and it's gonna, of course, gonna be trying to pick apart the diagnoses on the paper that our client has been giving, but it is very hard and sometimes impossible for them to pick apart these stories that the before and after witnesses give when they explain that. Look either the 12 before and after witnesses we have up here that are all telling stories about how this person's attention and memory have changed, or we have up here that are all telling stories about how this person's attention and memory have changed. Or we have 12 liars that we brought before you and a jury is just not gonna buy that. They're gonna say what? Why are all 12 of these people that they brought saying the same thing about the attention, the detail lacking and the memory issues? Are they all in it together or what's the more rational explanation, which is the?

0:20:00 - Shane Smith person has a brain injury, yes, and they're suffering greatly. I was gonna say, yeah, I mean, either they're all liars or our client is a great actor and fooled everybody, right? Or, which is much more likely, they have a brain injury, right? That's the question we ultimately want to put to the jury, right, I mean because if you think they're lying, then obviously they don't deserve anything because it's a lie, but think they're lying, then obviously they don't deserve anything because it's a lie. But you bring in five, ten, twelve jurors or twelve witnesses, you talk about it. It's hard to say they're all lying.

0:20:28 - John Mobley Yeah, they're a great actor and don't get me wrong, it's not just those 12 witness, hypothetical witnesses, it's also that we then couple that with the neurologist who said that they experienced or they've seen these symptoms in the patient, and then the imaging which shows that the part of the brain that controls attention and memory has a big bruise on it or vascular damage or some sort of brain injury. So when we couple the imaging with the neurologist clinically confirming it with the 12 witnesses, that is the recipe for making what is usually an airtight case it sounds like it, john.

0:21:00 - Shane Smith I mean I was going to say it sounds like you just laid out the playbook. Really Get the neurologist or the doctor to confirm the concussion and brain injury, get the imaging that shows the concussion or brain injury and then get the witnesses who can tell the stories that corroborate the area of the brain that was injured.

0:21:16 - John Mobley Yeah, that's about the best we can do to prove our client's case.

0:21:20 - Shane Smith John, I want to thank you for being on the show today. I think the information is helpful and it sort of shows out the plan on how we do things when we're pushing a case towards jury trial, but also just in the demand of the insurance company to really illustrate the impact it has on our clients. Because I think, honestly, the gathering of these stories and putting them together shows the true impact it had on our client and it pulls it off from just a diagnosis from the doctor and makes it real. Everybody has those friends and family. Everybody is used to talking to them. So when we put those stories out there, like you said, that's when you get a good, solid brain injury case that we can present to the other side and get a fair result or a great result. Right. If you like information about head injuries and concussions, I encourage you to hit like and subscribe to our podcast Mind Matters. Hit the bell for notifications, and remember: if you're in pain, Call Shane 980-999-9999. If you have a question for John, just send it to info@shanesmithlaw.com.