No matter how many focus groups one facilitates nor how many cases one tries there is one abiding difficult and perplexing question: "How do we (the decision-makers) figure out and then decide what pain and suffering are worth?"
Over time lawyers have arrived at certain formulas or bracketing exercises to help corral the jurors toward a verdict. We seem to agree that giving the decision-makers some markers is valuable.
William Glaberson writing for the August 24, 2011 NYTimes, "After Stilllbirth, Courts Try to Put a Price on a Mother's Anguish," reveals that the dilemma is one shared by the high courts in New York.
Two women each lose their baby at term. They sue their respective hospitals for medical malpractice. They received damages for emotional distress. The damages are half a million dollars apart. Excerpt.
"These two cases are among the first to move through the legal system after New York’s highest court changed state law in 2004 and allowed mothers to sue for their emotional suffering when they claim that medical carelessness caused a stillbirth. With their different price tags on elemental maternal loss, the cases offer a rare view of the legal system’s first computations to set a new value on this singular type of suffering.
They also shed light on the often macabre computations that lawyers make in trying to fix a dollar figure. As these cases represent uncharted territory in the state, the grim comparisons have gone especially far afield. Lawyers sought, among other analogies, to compare the trauma of a stillbirth to that of being attacked by a dog or to a passenger’s spending nine minutes of anguish knowing a plane is going down."
Does the higher verdict establish a floor for future awards in New York? Some seem to think so. And yet, it is not about the money - in place of a baby to hold. It is about recognizing that our courts offer legal recourse for damages that may not be physical in nature. As one of the women said, “The case helped me have a voice,” she said. “If it wasn’t for that, things would have been pushed under the rug.”
It is worth reading through the second page of the article to learn a bit more about the horrendous appeals process and the strategies used by the attorneys to help the decision-makers relate life experiences to reasonable compensation.
For this litigation consultant who stresses the importance of identifying, shaping and delivering the right story using language with power, passion and precision, these case outcomes show two things: (1) resilience in the face of odds; and (2) the value of spoken recourse to the petitioner because: "There is no greater burden than carrying an untold story." [Zora Neal Hurston]
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