Q: How do I tell the pain and suffering damages story?
A: Three things: Pain. Suffering. Time.
What is key to convey: (1) what is pain legally; (2) what is suffering legally; (3) how do you explain pain to the jury; (4) how do you explain suffering to the jury; and (5) what is the true value of money damages for each.
Pain and suffering are personal to each human being. Right off the bat we know that juries are biased against pain and suffering damages. Juries will need an argument balanced between passion and logic. If you can provide them with a "formula" that ties emotional meaning to a rational and logical method of decision-making.
One approach is the "Per Diem" argument which is based on one day in the client's life and extended through the anticipated life expectancy. For example, a 50 year old female with 25 years to live at 365 days per year plus the 2 years it took to get to trial at a determined dollar figure per day would total out to X amount. Another approach is to use your client's pain and suffering as a term of indentured servitude to the defendant, and what that's worth. A third approach is to draft a "help wanted" ad for the type of life your client leads with the pains and the sufferings in her life and ask who would take on that job and for what annual salary.
1. Pain. Become familiar with the legal standard and elements of pain as damages in your state. Identify as many of those in your client's case. Name each element in your trial. Your client can testify about all the ways in which she is working to overcome her pain; witnesses who don't have a dog in the fight can testify to the hardship of the pain experienced by your client. Validate pain as a legitimate damage by linking it to the decision of your state to recognize and legislate this element. And then tell the jury that the judge will give them the authority to decide the worth of those pain damages.
For example, the People of the State of Yours recognize that headache is a very real pain associated with head trauma. In this state the law says that headache is pain. My client has headache. The judge will give you the authority to determine the money value of her pain. You can repeat this for each element or bundle the elements together; whichever is less tedious and most effective.
2. Suffering. Suffering is different from pain. Remind yourself to treat it as a companion to pain but not its identical twin. So often lawyers run these two together, e.g. "painandsuffering," with little distinction made between them.
Again, become familiar with the legal standard and elements of suffering as damages in your state. Identify as many of those that exist in your client's case. Name each element in trial. Allow the jury to hear your client tell them about the mechanisms she is using to alleviate her suffering; let other reliable witnesses testify to the severity, frequency and degree of your client's suffering. What we are trying to avoid is any "whine" factor. And then tell the jury that the judge will give them the authority to determine the suffering and the money value of the suffering.
For example, the People of the State of Yours recognize that anxiety is a very real suffering associated with head trauma. In this state the law says that anxiety is suffering. My client has anxiety. The judge will give you the authority to determine the money value of her suffering. I prefer repeating this for each element of suffering; provided that the list does not numb the jury.
3. Time. There is a fallacy in calculating pain and suffering damages. The fallacy about pain and suffering damages is that we measure them in hindsight. And when we measure in hindsight we are more likely to both intellectualize and underestimate the length of time rather than feel the passing of actual time. Mother's who have labored in childbirth know this well; otherwise, the Planet would be a lot less populated. It is particularly difficult when we are asked to calculate pain and suffering in the case of a death when we do not have the decedent to tell us what it was like to feel the pain, to experience the suffering before she died.
Think about it: How long did it feel like it took before the dentist was done drilling out your old filling? How long did it feel like that baby was shrieking in the crowded airplane? How long did it feel like the headache wore on before the Aleve kicked in? These are only a few common examples of how we judge the feeling of the passage of time. A place to begin exploring this is in voir dire so the jury becomes familiar with the emotional meaning and the logical method to calculate the value of pain and the value of suffering.
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