You have to have a good brain to be a good lawyer, but it takes more than a good brain to be a good brain-injury lawyer.
In Pleasantville, partners at De Caro and Kaplen L.L.P. have built one of the nation”™s top practices in the area of brain injury law, and it”™s not something the firm”™s husband-and-wife team necessarily set out to do.
But as Michael Kaplen and Shana De Caro embarked on their legal careers and focused their practice on representing plaintiffs in personal injury cases, they found that few lawyers had expertise in representing patients with traumatic brain injuries.
“It”™s a very complex field,” said De Caro, who is chairperson of the traumatic brain litigation group of the American Association for Justice, an industry group representing trial attorneys. “On top of the legal aspect, there”™s the medical aspect as well, so you have the complexity of law combined with the complexity of the field of neurology.”
In the course of their practice, they found that clients who had been injured had healed well to outward appearances, but as time went on, evidence of brain injuries that would require long-term care crept out.
“They went back to work and they had a whole host of different problems that weren”™t apparent until they started to use their brains,” said Kaplen, who teaches a course in brain injury law at George Washington University Law School in Washington, D.C. “They couldn”™t do the normal day-to-day things. This is an injury that you can”™t see just by looking at someone.”
Often, people with traumatic brain injuries face issues in their daily lives that Kaplen says are overlooked ”” issues regarding insurance coverage, access to care and housing and civil rights.
“It”™s not only what you think of with cognitive functions,” De Caro said. “They have memory issues. But they often also have emotional issues that interfere with their relationships with their families and co-workers. There are all kinds of things that affect people”™s functioning on a day-to-day basis.”
In addition to representing clients, De Caro and Kaplen also consult with other attorneys in cases where clients have suffered traumatic brain injuries ”” cases ranging from domestic violence to car accidents to the current class-action litigation pitting the National Football League against its former players.
In domestic violence cases, matrimonial attorneys often don”™t have a deep understanding of brain injuries, Kaplen said. “But if they had a client who was a victim of domestic violence, 90 percent of those victims have a traumatic brain injury.”
And in domestic violence victims, De Caro said, “Ninety percent of the injuries are from the neck up.”
When people suffer injuries in vehicle accidents, they often suffer brain injuries, but according to Kaplen, the average lawyer isn”™t prepared to represent them.
In one case, Kaplen and De Caro represented three girls who were on a trip sponsored by a church to Pennsylvania. When the driver fell asleep, the van they were riding in rolled over. The mothers of the girls noticed that “something was off,” they were staring into space and the girls were acting abnormally.
“The girls had a type of epilepsy caused by trauma ”¦ and they got comprehensive treatment at NYU,” Kaplen said. “They received the treatment they needed and graduated from great universities. The settlement we obtained for them, multiple millions of dollars, paid for their treatment, paid for their educations and has set money aside if they need it for further care.”
The partners are constantly adding to their knowledge base, teaching and advocating for victims of traumatic brain injury.
“The public gets the impression that this is something that only happens on a football field,” De Caro said. “But you can slip and fall and hit your head and have a traumatic brain injury. You can be in a car wreck and have a traumatic brain injury.”
With the NFL concussion litigation having raised awareness about traumatic brain injuries, Kaplen and De Caro have consulted on the case.
Recently, De Caro and Kaplen wrote an opinion piece for The National Law Journal, arguing that the second proposed settlement in the case should be rejected because it was insufficient to satisfy the claims of all the class members.
“This latest proposal purports to generously provide financial stability for players with traumatic brain injury, but a closer look reveals a systematic design to exclude most players from participation and to reduce payments to the small group who meet arbitrary criteria,” the pair wrote in the July 21 piece. “It imposes unfair and illogical restrictions on the categories of compensable injuries and requires NFL participation for excessively long periods.”
Players are suing the NFL arguing that the league knew or should have known that playing professional football leads to neurological trauma and concealed that knowledge from players.
“The underpinnings of this lawsuit were the deliberate, long-standing NFL misrepresentations concerning the known health risks associated with concussions,” they wrote. “This proposal changes nothing. The court has an obligation to protect all class members. Any settlement that fails to should be rejected as fundamentally unfair and contrary to the best interests of the majority of class members.”
From day one, effort has been the key to success for De Caro and Kaplen.
“You really have to be willing to devote the time and energy, because this is an area of medicine ”” forget about the legal aspect ”” that is developing every day,” De Caro said.
“You have to really care about your client as a whole human being and not just about the particular case. You have to be willing to devote that much time and attention to it.”
