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Personal Injury Law: The Mystery of Pain and Suffering Damages, Part 1

by James Fasig

As a plaintiff’s personal injury lawyer, part of my job is collecting compensation for the pain and suffering of injured negligence victims. That can be a challenge, because there is no formula or guidebook for placing a value on someone’s pain and suffering.  When I select a jury, I always ask how the jurors feel about awarding money for a negligence victim’s pain and suffering.  Inevitably, I get some jurors who are dead set against awarding money for pain and suffering.

I often wonder how those same jurors would feel if they had to suffer at the hands of another’s negligence.  Would they just shrug it off and let the negligent person or their insurance company off without paying a penny?  What if the injury was serious and life altering?  I have seen many, many occasions where people who were formerly against lawsuits suddenly have a change of heart when they get injured at the hands of another.

How do we, as trial attorneys, persuade jurors to award a fair amount for our clients’ pain and suffering?

One strategy I suggest is to present the following scenario to the jury:  When evaluating a plaintiff’s pain and suffering, it is important to remember that the plaintiff was never given a choice; this injury was thrust upon the plaintiff by the negligence of the defendant.  The value of pain and suffering essentially comes down to the value of time.  Life all comes down to a series of moments.  Some moments are painful, others are joyful.  When someone comes along and by their negligence takes away some of those joyful moments and replaces them with painful moments, they have taken away something of value, something the victim will never get back.  The victim has lost the time he could have been enjoying, and has endured time suffering he would not have otherwise had to endure.

When people negotiate the value of their time, they usually don’t wait until after their time is lost to place a value on it.  A football player negotiates millions of dollars a year for his time before he goes out onto a football field and risks life and limb. People negotiate the value of their salaries or hourly wages before they work for even a minute.  So, when measuring the true value of a plaintiff’s suffering, it’s important to think about what the plaintiff would have accepted to endure the pain and suffering, if he or she had been given a choice.  How much do you believe the plaintiff, if he was a reasonable person, would have taken to endure the pain and suffering he endured if he had been given a choice?

This question is very powerful for two reasons. First, without breaking the golden rule (asking the jurors to consider how much they would accept as fair compensation), it gets the jury thinking about how much they would accept.  Secondly, it sets the plaintiff’s attorney up for the next step in the process, which is breaking down the pain and suffering to different elements and anchoring an element of the claim to each of the various elements of pain and suffering damages.

More on that in my next blog on the Mystery of Pain and Suffering Damages.

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