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“Most probate lawyers don’t know anything whatsoever about personal injury. They’ve never handled a personal injury case, don’t know how to, and don’t understand why you’re doing what you’re doing at all, and that can be dangerous.” – Price Johnson Welcome to Winning The TBI Case, hosted by trial lawyer Tom Crosley. Listen as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries. What’s In This EpisodeTom is joined by Price Johnson, a Dallas probate attorney, and CPA who is the kind of specialist trial lawyers call when a severely injured client may lack the capacity to sign a contract or approve a settlement. Protecting Your Client, Your Contract, and Your Fee A severely injured TBI client walks through your door with a loved one by their side. The injury is clear. The case is real. But the client cannot sign your contract. What do you do? When do you act? And who is your client? Price Johnson walks through the practical realities of representing clients whose capacity is in question. He covers the three paths available to attorneys in these situations. He explains the “incapacity trap” that can turn strong damages proof into a procedural problem. And he reveals the specific reason why calling a probate specialist should happen earlier than most trial lawyers think. What’s at Stake At stake is more than procedure. In a contingency case, how do you protect your fee when a probate judge later gets a say in whether it was reasonable? Price walks through: The reason why one-third contingencies rarely get challenged Why higher contingencies do get challenged Why getting your engagement fee approved up front protects both your client and your firm If you’ve ever worried about whether your contract will hold up or your fee will survive probate court scrutiny, this conversation is for you. Connect Connect directly with Price Johnson: 214-468-9000 Subscribe to Winning The TBI Case on Apple Podcasts, Spotify, YouTube or wherever you get your podcasts.  Follow on Facebook, LinkedIn, and Instagram. And remember, don’t just listen to the strategies, implement them!

One of the most common mistakes I see is lawyers screening for TBI will simply stop at asking the question, “Were you knocked unconscious?” – Tom Crosley Welcome to Winning The TBI Case, hosted by trial lawyer Tom Crosley. Listen as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries. What’s In This Episode Tom Crosley lays out a practical timeline for developing a TBI case during the critical first 6 to 18 months. He explains how better intake questions, four specific symptom-tracking tools, and consistent symptom documentation can establish an early foundation while helping attorneys avoid gaps that may later create problems with proof. Building the Foundation of a TBI Case The success of a case often depends on decisions made in the earliest days, long before depositions, expert testimony, or trial. In this episode, Tom explains why the first six months matter enormously and what lawyers need to do during the first 18 months to shape the medical and legal framework of the entire case. Using a real case example, Tom demonstrates what can happen when persistent brain injury symptoms are not adequately documented early. He then walks through his approach to identifying potential TBI cases, tracking symptoms, and supporting accurate medical documentation. Key Insights for Trial Lawyers Go Beyond Loss of Consciousness: Intake forms should explore memory, confusion, altered mental status, acute symptoms, and what others observed immediately before and after the injury. Create a Written Symptom Record: Vague descriptions such as feeling “foggy” or “not myself” may not adequately capture what a client is experiencing. Written symptom questionnaires can help clients organize their symptoms and communicate them more accurately to their treating physicians. Tom recommends the following four symptom forms: Philadelphia Head Injury Questionnaire (PHIQ) CDC Acute Concussion Evaluation (ACE) Rivermead Post-Concussion Symptoms Questionnaire (RPQ) Headache Impact Test (HIT-6) Avoid Gaps in Medical Documentation: Persistent symptoms need to reach the treating physician. Long periods without meaningful documentation can make an otherwise legitimate injury significantly more difficult to prove later. Know When to Expand the TBI Workup: For clients with persistent symptoms, Tom discusses when to consider advanced neuroimaging and whether a neuropsychological evaluation is warranted. Reassess as the Case Develops: As the case progresses into the 12-to-18-month window, repeat neuropsychological testing or neuroimaging may help document whether the client’s condition has improved, remained stable, or changed over time. For Trial Lawyers: Build the Foundation Early This episode is for trial lawyers who handle serious injury cases but may not regularly litigate TBI cases. Tom’s message is simple: Start early Ask better questions Document symptoms Make sure those symptoms are reaching treating physicians Continually evaluate whether the developing medical evidence supports the TBI case The goal is not to overbuild every potential brain injury claim. It is to recognize legitimate TBI cases early enough to develop the medical and factual record needed to accurately demonstrate the client’s injury when the case reaches trial. Connect Subscribe to Winning The TBI Case on Apple Podcasts, Spotify, YouTube or wherever you get your podcasts.  Follow on Facebook, LinkedIn, and Instagram And remember, don’t just listen to the strategies, implement them!

Defense experts often rely on a familiar set of arguments in traumatic brain injury cases. The challenge for plaintiff lawyers is knowing how to identify those themes and effectively challenge them. Welcome to Winning The TBI Case, hosted by trial lawyer Tom Crosley. Listen as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries. This episode is for plaintiff lawyers who want to recognize and dismantle the predictable defense expert playbook in TBI cases. Dorothy Clay Sims reveals the recurring tactics they use and shares the research methods to expose their weaknesses. In this episode, Tom sits down with attorney Dorothy Clay Sims, author of Exposing Deceptive Defense Doctors and a nationally recognized authority on defense medical testimony. Drawing on decades of experience, Dorothy discusses the recurring strategies she sees in TBI litigation and the patterns that appear again and again in defense opinions. She also shares practical steps lawyers can take to identify weaknesses in those opinions and build a stronger case for their clients. Dorothy shares insights on: Looking beyond the medical record to uncover critical evidence Challenging imaging and neuropsychological opinions effectively Researching and evaluating defense experts Preparing for deposition with a strategic purpose Avoiding common mistakes that can undermine a TBI case Whether you’re new to TBI litigation or looking to sharpen your approach, this episode offers practical guidance for recognizing and responding to the defense playbook. Connect Connect directly with Dorothy Clay Sims: https://dorothyclaysims.com Mentioned: Exposing Deceptive Defense Doctors Subscribe to Winning The TBI Case on Apple Podcasts, Spotify, YouTube or wherever you get your podcasts.  Follow on Facebook, LinkedIn, and Instagram. And remember, don’t just listen to the strategies, implement them! Winning the TBI Case — Episode 22: Exposing the Defense Expert Playbook  Host: Tom Crosley Guest: Dorothy Clay Sims Runtime: 35:58 [00:00] Dorothy Clay Sims (cold open): What we found out recently in a case in California is the defense expert altered the test administration and/or changed our client’s answers 67 times during the examination.  [00:12] Announcer: TBI cases can feel like navigating uncharted territory. Your client’s injury is real, but proving it is where the real challenge begins. If you’ve ever felt like you’re missing crucial pieces of the puzzle, you’re in the right place. Welcome to Winning the TBI Case, where Tom Crosley shares the insights he’s gained from over 60 injury trials. Not just the victories, but the lessons learned along the way that make all the difference. This is practical wisdom from someone who’s been in your shoes and found a path forward. Winning the TBI Case: strategy, science, and storytelling.  When Dorothy Clay Sims discovered that defense experts were systematically lying about her brain injury clients, she made it her life’s work to expose their deceptive tactics. In this eye-opening interview, Dorothy shares the tools every trial lawyer needs to identify and challenge fraudulent medical testimony.  [01:18] Tom Crosley: Welcome back to Winning the TBI Case. I’m Tom Crosley. Today’s guest is Dorothy Clay Sims. She’s a lawyer who has spent decades studying how defense medical experts operate: how they write their reports, how they testify, tactics they use to minimize or deny injury claims. And if you’ve ever read a defense IME report and thought, “Oh, here we go again,” then this episode is for you.  We’re gonna walk through what Dorothy actually does for trial lawyers, when you should consider retaining her, what you can learn from her, and hopefully give a practical framework for researching a defense doctor and building a cross-examination strategy that’s clean, fair, and powerful. All of this without turning the courtroom into a boring medical seminar. So let’s get into it. Dorothy, how are you doing today?  [02:13] Dorothy Clay Sims: I’m good. How are you doing, Tom?  Tom Crosley: I’m doing great. So you and I have known each other for, gosh, a long, long time. Almost 20 years now — more than 15 years for sure. A lot of your background I’m familiar with, but we may have listeners who aren’t. So I wanted to start with: what drew you into studying defense medical testimony in the first place, carving out this niche in your law practice?  [02:42] Dorothy Clay Sims: Well, my motivation, actually, it’s this guy right here. His name was David Hansford Sims. He was my brother. He had a very severe disability. He could not ever speak, communicate. He would sit for hours on end shaking a sock. And I saw how he was treated, and it really bothered me. And I felt like I wanted to represent disabled people.  And then the more I did it, the more defense reports I got, the more I realized these people are lying. And so one day, after 60 cases in a row where the same doctor said my clients were faking based on the MMPI, I went and met the creator of the MMPI, and I showed him the last report, and he started laughing. And I said, “What’s so funny?” And he said, “If this doctor had been my student, I would have failed him. This is not an appropriate interpretation of the test.”  I knew that they were lying — defense experts in general — but I didn’t know how. And so he actually became a friend of mine, and we spent hours together, and he would give me examples, questions to ask, and this is how they manipulated the science.  And I ended up doing a lot of brain injury work because there’s neuropsychological testing, and that is an area where I’ve seen incredible fraud. What we found out recently in a case in California is the defense expert altered the test administration and/or changed our client’s answers 67 times during the examination. It got so bad that during the cross-examination, the judge says, “Okay, you can stop. We know they did it all wrong.” We didn’t want to stop, but it was terrible. So the more I get into this, the angrier I get.  I spent several years taking all these tests myself, having physicals performed on me to understand how those are altered. And then I worked closely with my husband, who’s a physical medicine and rehab doctor, and he ran a brain injury clinic. And he watches the videotapes of the defense medical exams, looks at the report, and then he goes into the body of the report and lists everything they misrepresented based on the video. He’s done probably 700 of these. And when I asked him what percentage of the time the doctor actually accurately reflected what happened in the report — knowing that they were being recorded — the answer is zero.  [05:06] Tom Crosley: Some years ago, you wrote a book called Exposing Deceptive Defense Doctors. I actually bought that book, gosh, 20 years ago maybe. I don’t remember when it was published. But it was one of those three-ring binder books that was multiple volumes, very expensive for a young lawyer at the time. But I recall that book being instrumental in helping me approach defense IMEs. This was not brain injury cases; these were typically spine injury cases.  Dorothy Clay Sims: Right.  Tom Crosley: But since that time, it sounds like you’ve been doing a lot of work on brain injury cases.  [05:39] Dorothy Clay Sims: Yeah, and that book has had significant updates. It’s probably twice as long. I have a lot of references to diffusion tensor imaging — I know you had a piece on that. There’s a lot of politics going into articles that are written saying don’t use it. It’s unbelievable in that field what’s happening. But yeah, the book is longer and there’s a lot more updated information in it.  [05:57] Tom Crosley: I need to get it. So we had as a previous guest Stewart Casper, who you and I both know very well. And he and I talked about the concept of the citation cartel.  Dorothy Clay Sims: Yes.  Tom Crosley: So I’m assuming that’s a little bit of what you’re referring to in your previous comment just now.  [06:14] Dorothy Clay Sims: Well, there is such a thing. And in fact, one of the problems we have is people are afraid to talk about it, especially professionals, because a certain number of defense experts are very litigious. But yeah, when you have a defense expert become the head of a journal, deciding what gets published and what doesn’t, and that individual doesn’t even allow an article published by the creator of a test that is being analyzed and criticized in that journal — they don’t allow the test creator to weigh in. It’s bad.  [06:41] Tom Crosley: I know you speak a lot around the country and even internationally, and I’ve heard you speak several times. You’re always very entertaining. Some of the examples you give are so incredibly outrageous as to defy belief.  Dorothy Clay Sims: Yes.  Tom Crosley: And I haven’t had those examples actually appear in my cases, because I’m usually dealing with pretty known quantities. I mean, I’ve had you do opposition research for experts. You provided packets of information. But what I’d like to hear is the normal — what are you doing for lawyers like me, either by helping us prep for these defense experts, or sometimes, I know, you’ll come in and do them yourself as part of our case? Help us understand what you’re doing when you don’t have this crazy outlier who’s lied on his résumé and put in degrees that he doesn’t have and things like

“GCS is not looking at long-term outcomes. It’s looking at that little slice in time right after the injury happened in the acute phase.” – Tom Crosley Welcome to Winning The TBI Case, hosted by trial lawyer Tom Crosley. Listen as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries. What’s In This Episode: Tom Crosley explains how the Glasgow Coma Scale (GCS) gets weaponized by defense attorneys in mild TBI cases. He breaks down what GCS actually measures, why it was created, and how to defuse defense arguments that use normal GCS scores to discredit legitimate brain injury cases. Defusing the Defense Weapon This is for trial lawyers who need to understand why a normal GCS score doesn’t mean their client wasn’t injured. Tom reveals how defense attorneys take one number from acute medical records and use it to undermine entire cases. He explains the historical context of GCS which was created in 1974 as a bedside tool designed for neurosurgeons to assess coma depth and decide on emergency surgery, not to predict long-term outcomes. GCS measures three basic functions: Eye opening Verbal response Motor commands All tests that any elementary school student or family dog could pass. Tom provides the analogies and cross-examination techniques to expose how this acute triage tool has zero relevance to how patients function years later in life. By understanding what GCS actually measures (and what it doesn’t), you have the power to educate juries and neutralize one of the defense’s favorite, and often misleading, arguments. Connect Subscribe to Winning The TBI Case on Apple Podcasts, Spotify, YouTube or wherever you get your podcasts.  Follow on Facebook, LinkedIn, and Instagram And remember, don’t just listen to the strategies, implement them!

“What I’m looking for is: What is the correct diagnosis? What happened to this patient? Is he or she being treated correctly or properly? And that’s a concern of mine.” – Dr. David Levey Welcome to Winning The TBI Case, hosted by trial lawyer Tom Crosley. Listen as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries. Tom is joined by Dr. David Levey, a diagnostic radiologist and forensic neuroradiology expert who evaluates traumatic brain injury cases for both plaintiffs and the defense. Dr. Levey walks through the detailed process radiologists use to evaluate imaging, medical records, symptoms, and clinical history when analyzing TBI cases in both medical and litigation settings. What’s In This Episode Dr. David Levey explains how radiologists evaluate traumatic brain injury cases and how imaging findings fit within the broader clinical and litigation picture. He also shares practical insight into the role imaging plays in TBI litigation and best practices for trial lawyers working with radiology experts. Key Insights for Trial Lawyers Radiologists Evaluate More Than Images: Forensic radiology involves an extensive analysis of imaging combined with medical records, symptoms, clinical history, and causation evidence in context. “Normal” Scans and Imaging Do Not Rule Out TBI: There are times when traumatic brain injuries will not appear on routine CT imaging. MRI studies can reveal subtle abnormalities not visible on CT scans. Advanced imaging such as DTI, tractography, and volumetric imaging can provide additional detail and should always be considered alongside symptoms, testing, and functional changes. Effective TBI Litigation Requires Collaboration: Radiologists often work closely with attorneys and other experts to help evaluate complex brain injury cases. Dr. Levey pulls back the curtain on the detailed analytical process radiologists use to evaluate brain injury cases in both medical and forensic settings and shares how he works with both plaintiff and defense teams. Preparation Matters This episode is for trial lawyers who want a clearer understanding of how radiologists evaluate traumatic brain injury cases and how imaging evidence fits into litigation strategy. If you’ve ever struggled with “normal imaging” defenses or wanted insight into how to best leverage your radiology experts in TBI cases, then you’ve come to the right place. Referenced and Mentioned Dr. Levey and Tom reference tractography imaging beginning at time code 22:49 which can be seen on the video version of the podcast. Screenshots below for our audio listeners. Connect Connect directly with Dr. David Levey by visiting: www.expertradiologist.org Subscribe to Winning The TBI Case on Apple Podcasts, Spotify, YouTube or wherever you get your podcasts.  Follow on Facebook, LinkedIn, and Instagram And remember, don’t just listen to the strategies, implement them! Winning the TBI Case — A Radiologist’s Approach to TBI Case Evaluation  Host: Tom Crosley Guest: Dr. David Levey Runtime: 37:08  [00:00] Dr. David Levey (cold open): Follow-up MRIs can be valuable, particularly in two cases. One, if you have found nothing abnormal on imaging structurally, right? Yet the patient is so abnormal. The family doesn’t recognize them anymore. Work’s not going well. The tasks they used to do, they can’t do them anymore. Well, you know something’s wrong.  [00:20] Announcer: TBI cases can feel like navigating uncharted territory. Your client’s injury is real, but proving it — that’s where the real challenge begins. If you’ve ever felt like you’re missing crucial pieces of the puzzle, you’re in the right place. Welcome to Winning the TBI Case, where Tom Crosley shares the insights he’s gained from over 60 injury trials. Not just the victories, but the lessons learned along the way that make all the difference. Winning the TBI Case: strategy, science, and storytelling.  [00:55] Tom Crosley: Welcome back to Winning the TBI Case. I’m Tom Crosley, and today we’re gonna have an exciting episode. We’re gonna be talking about one of the most misunderstood areas in traumatic brain injury litigation, and that is brain imaging. Our guest today is Dr. David Levey, a diagnostic radiologist with a clinical practice reading brains and spines, and he also happens to serve as an expert witness from time to time in legal cases. About half of his work is on the defense side; about half is on the plaintiff side. So he’s one of those expert witnesses who is exactly what we want: science first, advocacy second. Somebody who does both sides and calls the balls and strikes like he sees them.  I wanted to start with a little bit about you and your background. What led you to go to medical school? How did you pick radiology as your specialty? Kind of bring us current to modern times.  [01:59] Dr. David Levey: Well, when I was 11, I read a book called The Defense Never Rests, and that was it. I was going to be a lawyer. And in the next few years, that evolved. I went to college, got two different bachelor’s degrees, really heading towards the neurosciences, and a master’s degree at UCLA before medical school. Then after medical school: internship, a trauma internship, four years of radiology at USC, and a fellowship. After 17 years coming out of the machine, I finally got my first job doing just that — neuroradiology, musculoskeletal imaging — here in Texas. That was the first job, and here I am.  [02:45] Tom Crosley: Tell us about how forensic neuroradiology — for example, in a brain injury case — differs from day-to-day clinical neuroradiology.  [02:53] Dr. David Levey: It’s extraordinary, the difference. I didn’t know about it until I started this 15 years ago. If you’re reading an MRI of the brain as a radiologist, you get the case; the case comes up. You get some clinical data. You may get some clinical information faxed to you. Some of it’s sketchy, some of it’s from the patient. You may get some nursing notes, from the PA or the doctor, but it’s variable. If you get 10 pages of notes, you’re really doing great. If you get a page or two, that’s acceptable too. Many of the diagnoses are fairly complete, and others may have “headache” or “head pain” or “trauma” — no date, no description, no time. You don’t have any idea.  So you are absolutely starting from the beginning and working your way through the brain MRI and trying to get that diagnosis. So you’re looking for everything under the sun. You can’t focus on trauma or anything. And that takes you X amount of time. You know, a brain MRI may take two minutes or two hours. I’ve had one take two days — spent two days on it, getting through it, it was so complicated. But it’s a finite experience.  But forensic radiology — you get reams of medical records and a number of opinions from everywhere. From the police report at the scene of the accident, all the way through the ER and the ICU and the consultants and surgery or not. Then the patient finally is released from the hospital and has all these follow-up appointments with many other experienced, seasoned experts: pain people, clinical psychology people, PM&R, et cetera. And the vast amount of information I can use to put a story together is what I think attracted me at first to this field. All the imaging available plus all the medical records together allows me to tell a story — not only with the radiology and the imaging, but the medical process and the path the patient took as well.  [04:57] Tom Crosley: Some radiologists that serve as expert witnesses don’t like to look at medical records. They just want to look at the imaging and dictate a report based on what they see. But it sounds like you like to look at the whole picture, including medical records. Why is that?  [05:10] Dr. David Levey: I think it’s important. I do like it, you’re right. But I also think it’s important. I think you’re missing something if you’re not doing that, because, first of all, from the correct diagnosis flows the correct treatment. I want to get involved with any patient — it doesn’t matter, defense, plaintiff, or whatever the situation is. What I’m looking for is: What is the correct diagnosis? What happened to this patient? And is he or she being treated correctly or properly? And that’s a concern of mine.  Because I see that if the radiologist who read the primary studies got it wrong, the whole crowd — medical, surgical, everybody — they’re following down the wrong pathway. And that’s the classic GIGO I see all the time: garbage in, garbage out. You get the wrong diagnosis, and there’s surgery in the wrong place, or no surgery where he needs it, or treatment that is inappropriate because the diagnosis was not made correctly in the beginning. So medical records really help with that. You hardly ever get that when you just get a case, read it, get a case, read it, like in a radiology practice.  [06:15] Tom Crosley: It sounded like your explanation of the difference between clinical radiology and forensic radiology was that sometimes, clinically, you might only spend a few minutes reading a brain scan, but if it’s forensic — meaning it’s going to be used in a court case — then you’re going to spend probably a lot more time. Is that what I’m hearing?  [06:35] Dr. David Levey: I do, and I see them over and over again, because it may take weeks to get the consultative report out. B

“ The TBI alters the organic chemistry, the physical structure of the brain to the point where our personalities then get altered. Our spirit knows who we are. But you can’t get that person back… and I think jurors get that.” – Scott Blair Welcome to Winning The TBI Case, hosted by trial lawyer Tom Crosley. Listen as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries. What’s In This Episode: Scott Blair shares how he built and tried a complex TBI case that resulted in an $8.1 million verdict.He explains the role of advanced neuroimaging, expert strategy, and objective evidence in overcoming common defense arguments. Most importantly, he provides practical guidance on how trial lawyers can strengthen their cases by understanding the medicine, telling the client’s story, and preparing for trial from day one. Winning Complex TBI Cases In this episode, Tom is joined by Scott Blair, founder of Brain Injury Law of Seattle, to break down the strategy behind a recent $8.1 million traumatic brain injury verdict. Scott shares how he approaches complex cases, from digging deep into the medicine to building objective evidence that makes it difficult for the defense to deny brain injury. This conversation goes beyond theory. Scott walks through the real decisions that shaped the case, including expert selection, advanced neuroimaging, trial strategy, and how to handle common defense tactics in high-functioning TBI clients. Key Insights for Trial Lawyers Dive deep into the medicine: The strongest TBI cases are built by lawyers who understand the underlying medical science and work closely with the right experts. Objective evidence changes the game: Advanced imaging, sleep studies, and vestibular testing can create converging proof that is difficult for the defense to dismiss. High-functioning clients require a different strategy: Clients who continue working after injury often face skepticism. Demonstrating how their capacity has changed is critical. Tell the employer early: Encouraging clients to disclose their brain injury can lead to documentation and accommodations that strengthen their case. Neutralize defense narratives early: Address issues like travel photos or work performance before the defense raises them to reduce their impact at trial. Use real-world functioning, not just testing: Speech-language pathology and real-world observations can be more persuasive than traditional neuropsychological testing alone. Before and after witnesses are critical: Family members, especially spouses, provide powerful testimony about how the client has changed after the injury. Visual evidence matters: Jurors respond strongly to clear visual representations of brain injury, especially when complex science is involved. This episode is for trial lawyers who want to take their TBI cases to the next level. If you’re handling complex or high-value cases, Scott Blair’s approach offers a practical roadmap for building stronger evidence, overcoming defense strategies, and presenting a compelling case at trial. Subscribe and Stay Connected Connect directly with Scott Blair: [email protected] Subscribe to Winning The TBI Case on Apple Podcasts, Spotify, YouTube or wherever you get your podcasts.  Follow on Facebook, LinkedIn, and Instagram And remember, don’t just listen to the strategies, implement them!

“The better you understand the definitions of mild TBI, the better equipped you are to read the records, evaluate the experts, and keep your case grounded in sound medicine.” – Tom Crosley Welcome to Winning The TBI Case, hosted by trial lawyer Tom Crosley. Listen as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries. What’s In This Episode:In this episode, Tom Crosley explains how mild traumatic brain injury is defined using both the ACRM 1993 and updated 2023 frameworks. He breaks down the three primary pathways to diagnosing TBI and how those definitions show up in real cases. And finally, Tom provides the simplified jury presentation that keeps the focus on symptoms, causation, and long-term impact. Understand the Framework This is for trial lawyers who want a clearer, more practical understanding of how mild TBI is defined and how those definitions are used in real cases. Tom Crosley breaks down the definitions that form the backbone of every brain injury case. He explains the evolution from the 1993 American Congress of Rehabilitation Medicine (ACRM) definition to the comprehensive 2023 update that created three distinct pathways to diagnosis: Clinical signs Symptoms with objective findings Abnormal imaging (NOTE: most mild TBIs will not appear on routine scans) If you’ve ever found yourself caught in a word play battle with the defense over terminology instead of focusing on the injury itself, this episode will help you reframe your approach. Subscribe and Stay Connected Subscribe to Winning The TBI Case on Apple Podcasts, Spotify, YouTube or wherever you get your podcasts.  Follow on Facebook, LinkedIn, and Instagram And remember, don’t just listen to the strategies, implement them!

“Every test you take today is going to tap into how a different part of your brain is working. Some tests will have more emphasis on different lobes of your brain than others. We’re going to be evaluating your memory, your attention, and your concentration ability.” – Dr. Janyna Mercado Welcome to Winning The TBI Case, hosted by trial lawyer Tom Crosley. Listen as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries. What’s In This EpisodeThis episode is essential for TBI attorneys who want to move beyond basic neuropsychology knowledge into advanced tactics. Learn the strategic timing for neuropsychological evaluations, how to interpret validity measures, and why transparency about test limitations strengthens rather than weakens your expert testimony. Dr. Mercado shares insider tips that can transform your approach in the courtroom. Advanced Testing Strategies and Courtroom Applications In the second part of this two-part series, Tom Crosley continues his conversation with Dr. Janyna Mercado to reveal strategies for neuropsychological evidence in TBI cases. Dr. Mercado demystifies the evaluation process and explains the critical timing decisions that can make or break your case. This conversation provides expert witness insights to maximize neuropsychological evidence and avoid the common mistakes that undermine TBI cases. Dr. Mercado’s practical insights reveal why successful neuropsychological evidence requires understanding both the science and the strategy behind telling compelling stories to juries and judges. Subscribe and Stay Connected Connect directly with Dr. Janyna Mercado at https://texasneuropsychinstitute.com Are you ready to take your TBI practice to the next level? Subscribe to Winning The TBI Case newsletter at www.crosleylaw.com/podcast for exclusive case studies, resources, and trial strategies you won’t hear anywhere else.  Join our community of trial lawyers who refuse to settle for average results. Subscribe to Winning The TBI Case on Apple Podcasts, Spotify, YouTube or wherever you get your podcasts. And remember, don’t just listen to the strategies, implement them!

“Individuals will walk into a courtroom or walk into our offices and they look like you and I. They don’t look like brain injury victims.” – Dr. Janyna Mercado Welcome to Winning The TBI Case, hosted by trial lawyer Tom Crosley. Listen as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries. The Critical Role of Neuropsychology in TBI Litigation (Part One) In the first of a two-part series, Tom is joined by Dr. Janyna Mercado, a clinical neuropsychologist who evaluates and testifies in traumatic brain injury (TBI) cases for both plaintiff and defense cases. Dr. Mercado defines what neuropsychology is and how it differs from neurology and general psychology. She explains how neuropsychological testing measures cognition, memory, processing speed, and overall brain function. These neuropsychological evaluations often play a critical role in traumatic brain injury litigation. As a neuropsychologist, her role is to translate those complex findings into clear explanations for attorneys, judges, and juries. This helps them better understand what may be happening inside the brain, even when brain imaging appears normal. In this episode, Tom Crosley sits down with neuropsychologist, Dr. Janyna Mercado to explain the role that neuropsychology plays in traumatic brain injury litigation. They discuss how neuropsychological testing evaluates the “working brain,” why mild TBI cases are often misunderstood, and how expert testimony can help juries understand invisible injuries. This first installment lays the foundation for understanding how neuropsychological evidence can strengthen TBI cases at trial. Key Takeaways: Function Over Structure: Neuropsychology examines how the brain functions, which is critical when imaging scans appear normal but cognitive deficits persist Understanding the Full Medical History: Pre-existing conditions should not be ignored or hidden. When properly evaluated, a client’s medical and psychological history can help clarify how a traumatic event aggravated or worsened prior conditions Teaching the Jury: Neuropsychologists translate complex brain science into understandable terms that help juries grasp what constitutes a mild traumatic brain injury This conversation provides foundational insight for trial lawyers handling TBI cases. If you’ve ever struggled to explain a mild TBI to a jury or wondered when and how to involve a neuropsychologist, this episode is for you. Stay Tuned… In the second part of this conversation, Tom Crosley and Dr. Janyna Mercado dive deeper into neuropsychological evaluations, including how testing works, how experts analyze results, and trial strategies attorneys can use based on those results. Subscribe and Stay Connected Connect directly with Dr. Janyna Mercado at https://texasneuropsychinstitute.com Are you ready to take your TBI practice to the next level?  Subscribe to: Winning The TBI Case newsletter at www.crosleylaw.com/podcast for exclusive case studies, resources, and trial strategies you won’t hear anywhere else.  Join our community of trial lawyers who refuse to settle for average results. Subscribe to Winning The TBI Case on Apple Podcasts, Spotify, YouTube or wherever you get your podcasts. And remember, don’t just listen to the strategies, implement them!

“DTI helps turn the invisible injury into something you can see and quantify, and more importantly, something your jury can see. ” – Tom Crosley Welcome to Winning The TBI Case hosted by trial lawyer Tom Crosley. Listen as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries. Breaking Through the “No Objective Evidence” Wall What happens when your traumatic brain injury client has normal CT scans and normal MRI results, but clearly isn’t the same person they were before the accident? In this essential episode, Tom Crosley dissects how Diffusion Tensor Imaging (DTI) is revolutionizing mild TBI litigation by making invisible brain injuries visible to juries. Tom walks through why this advanced neuroimaging technique is a powerful tool used to detect microscopic brain damage that standard imaging misses. He breaks down the complex science of how this technology is transforming “impossible to prove” concussion cases into compelling evidence of traumatic axonal injury. Key Takeaways: Science Made Simple: A jury-friendly explanation of DTI that anyone can understand Why Defense Experts Can’t Call DTI “Experimental”: Clinical uses of DTI that undermine defense attacks DTI Integration Strategy: Advanced neuroimaging as corroborating evidence that supports your case narrative Whether you’re new to DTI or looking to refine your approach, Tom’s insights make this episode essential listening for any attorney handling mild TBI cases. Mentioned: Episode featuring ACRM Traumatic Brain Injury (TBI) definitions: Introduction of Winning The TBI Case: Strategy, Science, and Storytelling Subscribe and Stay Connected Are you ready to take your TBI practice to the next level? Subscribe to our Winning The TBI Case newsletter at www.crosleylaw.com/podcast for exclusive case studies, resources, and trial strategies you won’t hear anywhere else.  Join our community of trial lawyers who refuse to settle for average results. Subscribe to Winning The TBI Case on Apple Podcasts, Spotify, YouTube or wherever you get your podcasts. And remember, don’t just listen to the strategies, implement them!

“Jurors don’t decide cases on the facts… They decide the case based the emotional content and whether they can connect with our client’s story.” – John Sloan Welcome to Winning The TBI Case hosted by trial lawyer Tom Crosley. Listen each week as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries. Uncovering the Core of a Client’s Story In this episode, Tom is joined by veteran trial lawyer, John Sloan, a nationally respected litigator with more than 150 jury trials under his belt. John brings four decades of insight to a deep and candid discussion about what truly moves juries in traumatic brain injury cases. Together they explore how to get beyond surface-level facts, uncover the emotional core of a client’s story, and present before-and-after witnesses in a way that makes the jurors feel the loss that TB clients live with every day. John also shares his experience with the Trial Lawyers College and how it has shaped his approach to storytelling and client connection, and why getting to know clients in their everyday environment is non-negotiable. Key Takeaways The critical importance of visiting clients in their homes to understand the real impacts of their injury Why medical documentation can make or break your case Why mild TBI clients often deny their own symptoms and how to handle that effectively How a lay witness can be more powerful than even the best neuroimaging The reason why specialized trial education can help litigators to better hear the hidden meaning behind what clients are saying. Trial lawyers will walk away from this episode with actionable strategies to strengthen their next TBI case and elevate their courtroom storytelling. Subscribe and Stay Connected Connect directly with John Sloan by visiting: https://sloanfirm.com Are you ready to take your TBI practice to the next level? Subscribe to our Winning The TBI Case newsletter at www.crosleylaw.com/podcast for exclusive case studies, resources, and trial strategies you won’t hear anywhere else.  Join our community of trial lawyers who refuse to settle for average results. Subscribe to Winning The TBI Case on Apple Podcasts, Spotify, YouTube or wherever you get your podcasts. And remember, don’t just listen to the strategies, implement them!

Introduction of Winning The TBI Case: Strategy, Science, and Storytelling Imagine standing in a courtroom, representing someone whose life has been forever changed by an injury no one can see. No broken bones visible on X-rays. No scars to photograph. Just a person who looks perfectly normal on the outside, but whose brain and the very essence of who they are, has been fundamentally altered. This is the world Tom Crosley introduced us to twelve episodes ago. “Traumatic Brain Injury trials are some of the most complex and contentious litigation scenarios that you can encounter as a trial lawyer,” he explained, setting the stage for a journey through one of law’s most challenging frontiers. TBI Trial Strategy Fundamentals & Advanced TBI Case Strategies with Keith Mitnik Keith Mitnik joined the conversation early to share a profound truth that shapes everything in TBI litigation: You need two completely different skill sets to succeed. “People either step in and try them and don’t truly know the science,” Keith observed, “or they know the science in their sleep, but they don’t know how to try a case with it. It takes both to do them right.” This isn’t your typical car crash case involving a herniated disc. This is a whole different universe of knowledge. And here’s where it gets interesting—Keith revealed that when medical bills are minimal compared to the damages you’re seeking, sometimes the boldest move is not presenting them at all. “Insider information gets in our way,” he explained. “We know we like to present medical bills. We know not presenting them may be unusual. Guess who doesn’t: the jury.” Sequencing the Evidence Tom then pulled back the curtain on one of the biggest mistakes lawyers make in TBI cases: telling the story in the wrong order. “Have you ever watched a movie where the twist at the end completely changed how you saw everything that came before it?” Tom asked. “Trying a TBI case is a lot like that.” The strategy is surgical in its precision: Build a wall of evidence before the jury ever meets your client. Prove the injury is real before the defense gets a chance to argue it isn’t. Win half the battle in your first two or three witnesses, drilling the point home so sharp and so early that momentum carries you through. How Expert Witnesses Build a Wall of Evidence But evidence alone doesn’t win cases. connection does. Tom revealed that while experts might be the brain of your case, before-and-after witnesses are its heart and soul. These are the people who knew your client before the injury, who can paint the picture of what was lost. They translate MRI scans and medical terminology into something jurors can see, feel, and understand. “When done right,” Tom emphasized, “they push jurors from understanding to truly caring. And that’s what wins cases.” The Power of Before-and-After Witnesses and Introducing the Plaintiff for Maximum Impact Here’s where the strategy gets almost paradoxical: In most TBI cases, Tom doesn’t let the jury see his client until deep into the trial, perhaps the 17th witness out of 20. “Timing is everything,” he explained. “You do not put the plaintiff on the stand until the jury is primed to see their injury and not just in medical terms, but in human terms.” By the time the plaintiff finally appears, the jury has been educated, emotionally invested, and prepared to truly see the invisible injury that has upended this person’s life. How to Tear Apart the Defense’s “Junk Science” Experts Episode eight brought us into the trenches of cross-examination, where Tom laid out his systematic approach to destroying defense experts in what he calls “junk science witnesses.” The strategy starts in discovery, trapping them early. Then comes the methodical dismantling: Expose their bias as paid witnesses Use their own words against them Transform their “normal limits” argument into a weakness Remind the jury that biomechanical engineers aren’t doctors Follow the money trail to expose the hired gun relationship “Nothing kills credibility faster than a hired gun in the hip pocket of the defense lawyer,” Tom noted with satisfaction. TBI: Not Everyone Recovers Then came the bombshell research every TBI lawyer needs to know. Tom shared groundbreaking data that destroys the myth that everyone recovers from brain injuries: “Only 27% of patients with post-concussive syndrome recovered after three months.” Let that sink in. And it gets more powerful: If symptoms persist beyond a year, patients are more likely than not permanently injured. And if symptoms last three years? The study found zero recovery after that point. This isn’t opinion. This is science. This is ammunition. The Multiplying Effect of Injuries with Steven Gursten Steven Gursten brought another crucial insight in episode ten, explaining how multiple injuries don’t just add up—they multiply human suffering. “Two plus two does not equal four in the human body,” his favorite doctor testified. When you have multiple injuries, people’s problems go up by multiplication, not addition. This reflects where we are today with medical literature and science—understanding the cumulative, synergistic effect of trauma on the human body. The All-or-Nothing Nature of TBI Cases with Steven Gursten Steven also pulled no punches about the harsh reality of TBI litigation: These cases are incredibly difficult to settle. “80 to 90% of plaintiff lawyers out there are afraid to take these cases,” he revealed. “They settle them for basically nuisance dollars because they’re afraid they’ll going to get no-caused.” The message is clear: You must have a track record of trying these cases for insurers to take you seriously. If you don’t, you’re just another lawyer they can lowball into submission. Mastering TBI Science with Stewart Casper Our journey culminated with Stewart Casper, who has spent over two decades building what might be the most comprehensive TBI research database in the legal world. Labeled a “nerd” for his dedication, Stewart has systematized knowledge gathering into an art form. Every weekend, he receives automated searches from PubMed for traumatic brain injury, mild traumatic brain injury, diffusion tensor imaging, and symptom validity. He categorizes everything into two buckets: What can be used for impeachment, and what’s educational. “Not many people have the patience to both study this stuff and index it as I do,” Stewart admitted. But that patience—that systematic approach to staying current—is what separates the warriors from the wannabes in TBI litigation. The Path Forward After twelve episodes, the message is crystal clear: TBI litigation isn’t for the faint of heart. It demands a rare combination of scientific mastery and storytelling brilliance. It requires the courage to leave medical bills on the table when they don’t serve your narrative. The wisdom to keep your client hidden until the perfect moment. The preparation to systematically destroy defense experts. And the commitment to stay current with ever-evolving science. But for those willing to master both sides of this coin—the science and the story—the opportunity is immense. Because behind every “invisible” injury is a very real person whose life has been forever changed. And they deserve a lawyer who knows how to make the invisible visible, who can transform medical data into human truth, and who won’t settle for nuisance value when justice demands so much more. This is the world of TBI litigation. This is what winning looks like. Connect With Us Have a topic idea or question for Tom? Email us at [email protected] If today’s recap reminded you why this work matters, share it with a colleague facing similar battles. Subscribe wherever you get your podcasts and join our community of trial lawyers who refuse to settle for average results. And remember, don’t just listen to the strategies, implement them!

“I said, this is really interesting stuff. It’s not just broken bones or a sprain of a neck. This is something really, really fundamentally interesting, and it would require a lot of hard work, which I was prepared to do as a young lawyer.” – Stewart Casper Welcome to Winning The TBI Case hosted by trial lawyer Tom Crosley. Listen each week as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries. Mastering the Science Stewart Casper has spent over 40 years becoming one of the most respected names in traumatic brain injury litigation. His reputation isn’t built on victories alone, it’s built on an unparalleled commitment to mastering the evolving science of brain injury. For two decades, Stewart has systematically read, curated, and indexed every significant piece of TBI research, creating a resource he generously shares with trial lawyers nationwide. In this episode, Tom sits down with Stewart to explore the insights that have shaped his legendary career. We start with where it all began when Stewart attended a brain injury conference in 1980 where he heard the term “diffuse axonal injury” for the first time. We then fast-forward to 2014 when he discovered neurometabolic cascade research that fundamentally changed how TBI litigators counter defense experts. Stewart’s career, spanning from that first brain injury conference to today’s cutting edge science, reveals what it takes to truly master TBI science in this ever-evolving and complex field. Key Takeaways Stewart’s systematic process for staying current with medical literature and creating a searchable database What the “citation cartel” is and how defense neuropsychologists manipulate perceived credibility Tactical advice on MMPI misuse by defense experts and how to demand raw data exchanges Why blood biomarkers and objective neuroimaging represent the future of TBI litigation Advice for lawyers interested in TBI litigation Mastering TBI Science with Stewart Casper Narrator: Stewart Casper has been a plaintiff’s lawyer for more than 40 years. He is nationally known for his handling of traumatic brain injury cases and has earned a reputation for unparalleled devotion to staying current with the scientific literature. For over two decades, Stewart has systematically read, curated, and indexed every significant piece of TBI research, creating an invaluable resource he generously shares with trial lawyers nationwide. In this episode, Stewart’s insights showcase why he is considered a living legend in TBI litigation and his practical wisdom to help any lawyer elevate their practice. Tom Crosley: Welcome back to winning the TBI case. I’m your host, Tom Crosley. Today we are blessed to be joined by Connecticut trial lawyer and Living legend Stewart Casper. How are you, Stewart? Stewart Casper: That’s quite an introduction. I am fine, Tom. Thank you for that. Tom Crosley: You know, I have often said, Stewart, maybe you’ve heard me say it, but if the AAJ TBI Group had a physical library—like a brick and mortar building—your name be on the side of it. Stewart Casper: Well, thank you. But, um, I’m a little compulsive about it, as you know. Tom Crosley: All right, and we’re gonna get into that. And what we are referring to, folks listening, is that Stewart is the industry leader in the TBI litigation field for staying on track with the medical literature, staying on track with the science, reading the latest articles, discussing them for the rest of us, helping the rest of us understand what they mean and how to use them in our cases. And so we’re gonna cover some of that in today’s podcast. But first, Stewart, I’d like to talk about you, your, uh, tell us your path to becoming a TBI lawyer. What got you started in this process in the first place? Stewart Casper: That’s an interesting question. The backstory is interesting. I was a very young lawyer. I was, um, perhaps in my first or second year of practicing law, and I attended, I think was my first then ATLA education program put on by the Traumatic Brain Injury litigation group. Or it wasn’t a group at that point. It may not have been. It was, the educational program was on traumatic brain injury. It was a two-day program in Boston. I remember as a young lawyer thinking, “Well, why don’t I go to that?” And it was really, really stimulating. It was, um, I think the first time I had heard the term “diffuse axonal injury,” And it was, at that time I heard about MRI, except it was in the early stage of MRI. So I’m talking 1979, 1980. So, and the acronym at the time was NMR and the myth was—could have been myth, it could have been true—that the radiologists didn’t want the acronym to turn into “No More Radiologists.” And at the time it was far from true, but maybe today with artificial intelligence, we’re getting closer to that point. That’s, it’s interesting. So the bottom line was, I said, “This is really interesting stuff.” It’s not just broken bones or a sprain of a neck. This is something really, really fundamentally interesting. And that it would require a lot of hard work, which I was prepared to do as a young lawyer. If you look—at the time I was looking to create a niche for myself, and that was the niche. And you know, I would have been successful at doing that. I’m grateful for that experience and grateful for the path. Narrator: That early exposure to cutting edge brain injury science shaped Stewart’s entire career. While other doctors were content to rely on treating doctors and basic medical knowledge, Stewart made a different choice. He decided to become a true student of the science. That commitment would pay off decades later when he discovered research that would change how we all litigate TBI cases. Stewart Casper: And it was around 2014, I came across an article that was published in Continuum. Continuum is the educational arm of the American Academy of Neurology. And that Continuum article talked about the neurometabolic cascade, really dividing it. And it was an article that was designed to be about diagnosing and treating sports concussion. You know, a concussion is a concussion. Some are more violent than others, but there isn’t a separate, um, there isn’t a separate pathophysiology for getting hit on the football field and have it being concussed and a separate pathophysiology for, getting a concussion in a wreck. And so, I was just sort of amazed that I came across this article and I think it was 2014. And it turns out it wasn’t the first one that I had missed. A couple of earlier papers that Dr. Christopher Giza from UCLA was a co-author of, and I’m reading that article and the lights and sirens are going off. I said this concept of the neurometabolic cascade really addresses that issue of why the immediate aftermath of a concussion is not the most consequential time for a concussion; that it can occur days, weeks, and months later because the whole concept of the neurometabolic cascade has to do with the secondary pathophysiologic effects of the brain injury. The things like the flooding of the glutamate and the electrical changes in the brain. And as the imbalance in the different substances in the brain create a snowballing effect, and there’s no way to tell when it is going to resolve. Tom Crosley: Let me interject with a question or comment. So you said something I thought was important. It certainly was a signpost for me as a listener. You said you’re reading this article in Continuum, which is the publication of the American Academy of Neurology in circa 2014, and you had a lights and sirens moment where these alarm bells are going off in your head and you’re connecting the dots. What precisely was it that you thought was important about that article and that thought process, for our listeners? Stewart Casper: Well in the experience of handling a number of concussive brain injury cases, and I actually, I think it was actually Michael Kaplan, New York, who used that frame, a “concussive brain injury” as distinct from a concussion or as distinct from a traumatic brain injury. Um, and I like that. I like that idea from Michael. But we were consistently dealing with the citation cartel and the defense experts who claimed that everyone got better and that the worst point in time after a concussion was immediately after the concussion; immediately after the trauma. And it was, uh, Dr. Giza and Dr. Kutcher from Chicago, who framed that 2014 paper in Continuum who said, “Well, that’s, there’s a primary injury, there’s a secondary injury, and this is what happens.” Narrator: Stewart’s discovery of the neurometabolic cascade research changed how plaintiff attorneys could counter defense experts who claimed everyone recovers in 90 days. But Stewart’s contribution to TBI litigation goes far beyond reading a single groundbreaking article. For over 20 years, he’s been systematically curating and indexing every significant piece of TBI research. Tom Crosley: Stewart, you’ve been known to read and archive every peer reviewed study on brain injury. Uh, how do you approach digesting such a massive body of literature? Stewart Casper: The predominant way I have for doing that is having a standing search at the National Library of Medicine, PubMed, and the terms I search are “traumatic brain injury,” “mild traumatic brain injury,” diffusion tensor imaging” and, “symptom validity.” And I get an email every weekend and it gives me the top 20 publications that fulfill

“ 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.” – Steven Gursten Welcome to Winning The TBI Case hosted by trial lawyer Tom Crosley. Listen each week as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries. When Settlement Offers Stay Stubbornly Low In the conclusion of their two-part series, Tom continues his conversation with Michigan trial attorney Steven Gursten. They discuss tackling one of the most frustrating challenges in TBI litigation: getting cases settled for fair value when insurance companies consistently mis-evaluate them. Steven shares the reasons why mild TBI cases demand a completely different playbook for both damages presentation and settlement strategy. He explains some of the proven tactics that catch defense lawyers off guard and lead to substantial settlements for his clients. This insightful conversation explains why TBI cases are fundamentally all-or-nothing propositions and what you can do to stack the deck in your client’s favor. Whether you’re facing your first mediation on a brain injury case or looking to refine your approach, Steven’s systematic strategies offer practical wisdom for achieving results that reflect the true value of your client’s traumatic brain injury. Key Takeaways Steven’s unconventional approach to presenting economic damages in TBI cases The Sponsorship Theory – A powerful negotiation strategy that leverages the defense’s own experts against them How regular communication with TBI clients helps prevent confusion, distrust, and doubt from creeping in when settlement offers come in low The creative deposition tactic that changes negotiation dynamics before mediation begins Why having a trial track record is essential for settlement leverage in TBI cases The All-or-Nothing Nature of TBI Cases with 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 thi

“When you have multiple injuries, multiple problems, people’s problems go up by multiplication, not by addition.” – Steven Gursten Welcome to Winning The TBI Case hosted by trial lawyer Tom Crosley. Listen each week as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries. Rethinking The Unwinnable TBI Case In the first of a two-part series, Tom is joined by Steven Gursten, nationally recognized trial lawyer and past president of AAJ TBI Litigation Group. Steven shares the pivotal experiences that shaped his TBI litigation career, from taking on “hot grounder” cases early on to achieving multimillion-dollar verdicts. These early successes made Steven the lawyer other lawyers turn to when cases seem unwinnable. In this episode, their conversation goes beyond trial tactics to explore the deeper lessons learned from decades in the courtroom: the critical importance of mastering the medical and scientific aspects of TBI, the challenges created by gaps in diagnosis and treatment to Steven’s tactical approach to transforming perceived case weaknesses into courtroom strengths. Steven also reveals an unexpected connection between two types of injuries that has fundamentally changed how he approaches cases that don’t fit traditional TBI profiles. Key Takeaways A practical framework for deciding which cases deserve six-figure investments versus early settlements The two case killers every TBI litigator must recognize and actively manage from day one Steven’s approach to salvaging delayed-diagnosis cases most lawyers would turn down The importance of mastering medical literature and meeting with doctors to build credibility Leveraging the ‘multiplication not addition’ concept that changes how juries see injury cases Listeners will gain new ways of thinking about evidence, strategy, and storytelling that will reshape their approach to TBI cases. Join us next week for the conclusion of this two-part series where Steven and Tom tackle one of the most frustrating challenges in TBI litigation: getting cases settled for fair value when insurance companies consistently mis-evaluate them. The Multiplying Effect of Injuries with Steven Gursten Tom Crosley: Welcome back to winning the TBI case. I’m your host, Tom Crosley, and today we’re joined by Steven Gersten. Steve is Michigan Auto Law and he’s a nationally recognized trial lawyer. Consistent top 50 Michigan attorney, voted by his peers. He’s a past president of the AAJ TBI Litigation Group, among other AAJ groups. He’s currently leading AAJ’s Distracted Driving Litigation Group. And today Steve and I are gonna talk about what it takes to win these cases. Steve, how are you today? Steven Gursten: Hey, great to see you, Tom. I’m doing great. Tom Crosley: Uh, would you give us some background about yourself and what got you into TBI litigation in the first place? Steven Gursten: Sure. So I was lucky enough, um, in a, in a Malcolm Gladwell outlier sort of way, being in the right place at the right time to, uh, become a lawyer in 1995, which is now 30 years. The reason I consider that so lucky is that was when Allstate and then State Farm, uh, shortly after started their MIST: Minimal Impact Soft Tissue programs where for the first time in like a generation or two lawyers were actually being forced to go to trial and try these, low vehicle damage soft tissue cases. It was for me as a baby, baby young lawyer, the greatest thing I could have asked for because literally two weeks after I passed the bar, I’m trying my first case and, um, I got a ton of great invaluable trial experience right away. And the reason I think that’s so important is one of the things that we always need to think about when we’re in a profession where the supply of lawyers is always much greater than the demand for those lawyers is how do we separate ourselves, right? How do we make ourselves remarkable? How do we make ourselves stand out when you’ve got thousands of other lawyers in your venue that are all marketing for the exact same kinds of cases? As I was trying these cases, I developed a reputation for getting hot grounders from other lawyers. And those would be the cases—you’re smiling ’cause you know, ’cause you’ve been there too. Um, you know, where it’s like three weeks before the trial and that lawyer finally dawns on him or her that they’re not gonna be able to settle this case. And they gave it to me for trial. Tom Crosley: I love that phrase, hot grounders. I knew instantly what you meant by it, even though I’d never heard it used in that context. Steven Gursten: Yeah, no, I mean, hot, hot grounders will age you a little bit, but they are a lot of fun and a lot of experience. But one of those cases was a really interesting mild, uh, traumatic brain injury case where a woman had been involved in a car crash and had worked, uh, continued to work for eight months after the crash. And as you know, you know there are a couple reasons why we tend to lose these cases. I think delays in diagnosis and gaps in treatment are probably two of the very biggest. And the lawyer who referred it to me felt it was an unwinnable case with eight months of continuing to work and, and getting pretty good work evaluations, that there really wasn’t no way that we were gonna prove that she had an impairing brain injury. And fortunately, in Oakland County, Michigan, which is a very conservative venue, um, a jury felt differently and awarded $4.2 million. And I was in my, I think I was a year and a half into practicing law. And what that led to was a lot of lawyers now all over the state that started referring me. There were brain injury cases and really that’s how I got really involved in brain injury. I got thrown in the fire and had a, you know, some early success and then kind of just became the lawyer that lawyers referred those cases to in Michigan. Tom Crosley: I love that story. Especially the part about, it’s a hot grounder. It’s a case that somebody else thought was not winnable. You’re still a baby lawyer and I’m sure… What was the pretrial offer? Was it Allstate or State Farm or one of those? Steven Gursten: It was through General Motors, because it was a General Motors test vehicle, uh, which is great because that meant I actually got paid on the case too. The highest offer, so the offer was basically zero going into trial. And we did really well at trial. The offer when the jury was deliberating was $100,000, and the jury came back at over $4 million. Tom Crosley: That’s amazing. That’s great. So 42x of the best offer during deliberations and infinitely better for compared to the pretrial offer. Steven Gursten: But it goes to the point that you and I always make when we teach at seminars, which is you have to be willing to try these cases too because adjusters and insurance companies will always under-evaluate the full value of these cases. So you have to try them. Tom Crosley: And that was probably, that’s always been true. I think it was probably even more true back then because people didn’t know, I mean, still today insurance companies have difficulty evaluating A TBI case, I mean, I’ve talked about this a lot in terms of you can’t use past medical expenses or even future meds as a barometer to gauge the value of A TBI case. Steven Gursten: Nor should we, by the way. Um, you know, when you talk about what the future holds and what the peer-reviewed literature shows, these people are so much more susceptible to now with dementia, Alzheimer’s, Parkinson’s, you know, divorce, suicide, everything. It’s, um, I think using past medicals is really misleading in terms of what the future really could bring to these people. Tom Crosley: I want to dive a little deeper into the case you tried. So what, what year was that first TBI trial with the big result? Steven Gursten: So I, I became a lawyer in ‘95, so let’s say ‘96 or ‘97, Tom Crosley: And so what was the evidence like back in ‘96 or ‘97? We didn’t have advanced neuroimaging readily available to us. How did you prove the existence of the TBI? Steven Gursten: Right, so it would’ve been neuropsychological testing back then, because back then we didn’t really have much else. We were just experimenting with SPECT scans at that time: Single Photon Emission Computerized Tomography. I don’t remember honestly if we did a SPECT scan in that case or not. It’s been 29 years. But, um, those probably would’ve been the two ways that we proved it along with, you know, a psychiatrist or a neurologist, whoever would’ve been part of that group that we’re providing, uh, rendering treatment for her. Tom Crosley: Yeah. And so, alright, so that makes sense. You hit this big lick, other lawyers now view you as the TBI guy. You start getting lots more cases and probably lots more opportunities to work these cases up. So how did that evolve over the years? Steven Gursten: That’s a great question. So let me first put in a plug to the AAJ Traumatic Brain Injury Group, um, whether it’s a AJA or any TBI seminar. The message that I always try to get across is so much of the medicine and science is counterintuitive in these cases. And you really have to learn. And one of the things that I think separates lawyers like you and lawyers that do very well in trial on these kinds of cases from those that don’t, is they actually spend the time learning the medicine and the science. You have to spend hundreds of hours learning the stuff and going to seminars