RESULTS DEPEND UPON FACTS OF EACH CASE; SIMILAR CASE RESULTS NOT GUARANTEED

Coma, confusion and character. Mark Schluter had all three. In Richard Powers’ powerful novel The Echo Maker — recent winner of the prestigious National Book Award — Mark is the victim of a mysterious crash that leaves him comatose and confused, and needing every bit of his toughness and character.

In the first few hours of his living nightmare, an anonymous person leaves Mark a note at his hospital bedside:

I am No One but Tonight on North Line Road GOD led me to you so You could Live and bring back someone else.

A few weeks ago I learned that one of Virginia’s most distinguished personal-injury trial lawyers had suffered a bitter defeat. We need folks to continue to make the good fight, and I wanted to let him know of my respect for his courage in fighting the good fight against the odds.

I did not have far to look for my inspiration. I looked to my office wall and saw the fighting words of the indomitable Teddy Roosevelt that have sustained me as I approached a battle or reeled from a stinging defeat:

It is not the critic who counts, not the man who points out how the strong man stumbled, or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes short again and again, who knows the great enthusiasms, the great devotions, and spends himself in a worthy cause, who at best knows achievement and who at worst if he fails at least fails while daring greatly so that his place shall never be with those cold and timid souls who know neither victory nor defeat.

To know or to represent a victim of traumatic brain injury is to be sobered by the gravity of the injury and humbled by the victim’s efforts to regain his life.

Statistics don’t often tell us much about the individual victim, but they can tell us much about the extent and severity of the problem across our population. According to the Brain Injury Association of America:

1. Every 23 seconds one person in the United States sustains a Traumatic Brain Injury.

One of the best things about the seasoned trial lawyer is the wealth of his experience.

One of the worse things about the seasoned trial lawyer is the poverty of his experience.

Trial lawyer, let’s look at just one of your jobs — the discovery of the other side’s facts. Do you file the suit, then serve Interrogatories and Requests for Production, and, after finally receiving all of the other side’s discovery responses, then and only then take the deposition of the other party? This would be normal, this would be expected, and at least in most cases this would be safe and productive.

On October 6, 2006, the Virginia Supreme Court reinstated a Fairfax County jury’s $1,800,000 verdict in a mild traumatic brain injury case that I tried in August of 2005. In Wu v. Wirthlin Worldwide, the trial court had found after the verdict that at the time of this accident Defendant Wirthlin’s employee was not within the scope of employment because at the time of this accident she was doing nothing more than merely traveling to work.

The Supreme Court rejected the trial court’s analysis that an employer cannot be vicariously liable when the employee is traveling to work at the time of the accident; instead, the Court focused on whether there was sufficient evidence of the employee’s intent to benefit the employer at the time of the accident. While the employee had testified that she was returning to the office to pick up her glasses and “other items,” her boss testified that the employee had told her that she was returning to the office in order “to pick up project files in preparation for” a meeting the next day. The Court held that:

Because the record shows conflicting credible testimony regarding (the employee’s) intent at the time of the accident, there existed a sufficient question of fact concerning whether she was acting within the scope of her employment to submit the issue of Wirthlin’s liability to the jury. The trial court thus erred in substituting its judgment for that of the jury.

On October 5, 2006, the Insurance Institute for Highway Safety in Arlington, Virginia — a non-profit organization focused on reducing injuries and deaths on our roadways — published the results of a new study on the safety benefits of side airbags.

The study’s findings included:

1) side airbags substantially reduce the risk of death;