Address the Subjectivity of Pain and Suffering | Holland & Hart – Persuasion Strategies
The damage category “pain and suffering” is notoriously uncertain, at least according to the judges’ assessment. Quantifying and monetizing a claimant’s subjective experience associated with loss or injury can be challenging. Ultimately, of course, pain is an electrochemical reaction in the brain, and as technology advances, it is likely to become more objective in the future. A recent article (Monteiro, 2020) sheds light on advances in brain imaging and the field of “Neurolaw” working to make this a reality. The technology promises to “create more objective ways of assessing the severity of pain by comparing it to that of other people,” writes author Eva Monteiro of McGill University Law School.
It is foreseeable that the plaintiff’s bar could resist this type of evidence, and some of their reasons will be good (i.e., the lack of pre-study injury measurements and the inherent subjectivity of “suffering” as opposed to “pain”). In addition, however, the plaintiffs would miss the ability to use “pain and suffering” as a rallying point for the jury’s anger and guilt, especially when punitive damages are not an issue. And as long as or until neurological images in pain and suffering claims become commonplace, trial lawyers must continue to deal with the subjectivity that jurors perceive. For those defending themselves against these claims, there are some considerations to keep in mind.
Be careful to avoid insensitivity
It is tempting to view the “pain and suffering” category as a place where plaintiffs tend to exaggerate. Even if so, there is a risk of appearing insensitive to the jury viewing you as a player downplaying the plaintiff’s injury. This not only relates to damage, but also plays a role in determining liability. After all, the kind of company that would shrug off suffering could also be the kind of company that ignored obvious dangers. To telegraph judges that you take the category seriously:
Mr. Smith has been through a lot. We fully realize this, and nothing we say minimizes that.
When I purposely observe bogus juries, I find that they generally acknowledge the subjectivity and uncertainty of the pain and suffering category. Some even explicitly treat it as a punishment category: “It’s a measure of how angry we are [defendant]”Explained a sham juror. This means that your own credibility and your liability defense are central. However, you must also discourage the jurors from treating the category as an open target for their complaints. We often see a strong feeling from some that the jury should refuse to exaggerate what cannot really be quantified.
Only Mr. Smith can tell how he’s feeling. While we have no reason to doubt his sincerity, it is important to note that his perceptions are just that – they are personal, individual, and subjective. They are not easy to quantify when you look at the evidence.
Consider placing it in other categories
Research in the social sciences suggests that judges can damage damage in two phases: First, they develop a broad sense of whether the damage should be high, average or low. then they assign this determination to an actual figure. The first phase will depend on how you feel about both parties and their respective credibility and responsibility. However, on the way to the calculation, they will often try to anchor their number by looking at some of the other more informed categories. For example, they will treat it as a fraction or a multiplier of the economic damage. When the economic damage is relatively minor, you want to highlight the comparison if you can.
When you think about damage, you will likely start with what you can see: The economic damage … By the time you get to the next category you will ask yourself, “How much pain and suffering has it shown? relative to this amount? “Is it a tenth or a quarter? More or less?
And remember, jurors look at the bottom line
Finally, it should be noted that many jurors think of damage in terms of the total amount. Many years of purposely observing bogus juries and asking actual jurors about the verdict have shown me that damage is not so much a matter of “the plaintiff’s whole” as a statement of the relative merits of the lawsuit and the lawsuit defense. The judges will weigh their overall impression of what the plaintiff “deserves” and what the defendant “deserves”. While you need to bring up the details, part of your message should point to this tendency to look at the bottom line.
When you are ready to consider damage, I believe you will approach this stage carefully, looking at what is proven, not just alleged, and with the aim of achieving a final amount that is fair, reasonable and is supported.
Monteiro, E. (2020). Objective Justice, Subjective Pain: A New Look at Pain and Suffering in Pies through the Lens of Neurolaw. Law and senses. http://lawandthesenses.org/probes/objective-justice-subjective-pain-a-fresh-look-at-pain-and-suffering-in-torts-through-the-lens-of-neurolaw/
Photo credit: 123rf.com, used under license