By Dr. Ken Broda Bahm:
The damages category of “pain and suffering” is notoriously uncertain, at least in jurors’ estimation. The act of quantifying and monetizing a plaintiff’s subjective experience associated with a loss or an injury can be a challenge. Ultimately, of course, pain is an electrochemical response within the brain and as technology advances, it is likely to become more objective in the future. A recent article (Monteiro, 2020) highlights the advances in brain imagery, and the field of “neurolaw” working to make this a reality. Technology holds the promise of creating “more objective ways of assessing the severity of pain, by comparing it to that felt by other people,” writes the author, Eva Monteiro of McGill University Law School.
It is predictable that the plaintiff’s bar might resist that kind of evidence, and some of their reasons will be good ones (i.e. the lack of baseline pre-injury measurements, and the inherent subjectivity of “suffering” as opposed to “pain”). In addition, however, plaintiffs would miss the ability to use “pain and suffering” as a catch-all repository for the jury’s anger and blame, particularly when punitive damages are not a factor. And, unless or until neurological imagery becomes commonplace in pain and suffering claims, litigators must continue to address the subjectivity that jurors perceive. For those defending against these claims, there are a few considerations to keep in mind.
Take Care to Avoid Insensitivity
It is tempting to see the “pain and suffering” category as a place where plaintiffs tend to exaggerate. Even where that is true, there is a risk in appearing insensitive if the jury sees you as downplaying the plaintiff’s injury. Importantly, this doesn’t just relate to damages but also plays into their liability determination. After all, the kind of company that would dismiss suffering might also be the kind of company that would disregard obvious dangers. So telegraph to jurors that you take the category seriously:
Mr. Smith has been through a lot. We fully recognize that, and nothing we are saying minimizes that.
Do Address Subjectivity
When watching mock juries deliberate, I notice that they commonly acknowledge the subjectivity and uncertainty of the pain and suffering category. Some even explicitly treat it as a punitive category: “It is a measure of how angry we are with [defendant],” one mock juror explained. That means that your own credibility and your liability defense is central. But you will also need to dissuade jurors from treating the category as an open-ended target for their grievances. We often see a strong sentiment from some that the jury should resist exaggerating what can’t really be quantified.
Only Mr. Smith can say how he feels. While we don’t have a reason to doubt his sincerity, it is important to note that his perceptions are just that — they’re personal, individual, and subjective. They aren’t something that you can easily quantify by looking at the receipts.
Consider Anchoring It to Other Categories
Social science research suggests that jurors arrive at damages in two stages: First, they develop a broad sense, or “gist,” of whether damages ought to be high, average, or low; then they map that determination onto an actual figure. The first stage is going to be determined by how they feel about both of the parties and their respective credibility and responsibility. As they move toward calculating, however, they will commonly try to anchor their number by looking at some of the other more grounded categories. For example, they will treat it as a fraction or a multiplier of economic damages. When the economic damages are relatively modest, then, you want to highlight the comparison if you can.
If you get to the point of considering damages, then you will likely start with what you can see: The economic damages… Then, as you get to the next category, you’ll ask yourself, “How much pain and suffering has he proven relative to that amount?” Is it a tenth or a quarter? More or less?
And Remember that Jurors are Looking at the Bottom Line
Finally, it helps to keep in mind that many jurors think of damages in terms of the bottom line overall amount. Many years of watching mock juries deliberate, and interviewing actual jurors post-verdict, have shown me that damages are perceived not so much as a matter of “making the plaintiff whole,” but as a statement on the relative merits of the claim and the defense. Jurors will balance their overall impression of what the plaintiff “deserves to get” and what the defendant “deserves to pay.” While you need to address the details, part of your message should speak to this tendency to look at the bottom line.
If you get to the point of considering damages, I believe you will approach that phase carefully, with an eye toward what is proven and not just asserted, and with the goal of coming up with an ultimate amount that is fair, reasonable, and supported.
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Other Posts on Damages:
- Normalize Your Damages: Five Ways
- Remember, With Damages It’s the Message and Not Just the Math
- Consider How Jurors Arrive at Damages Numbers: In Stages and With Difficulty
Monteiro, E. (2020). Objective Justice, Subjective Pain: A fresh look at pain and suffering in torts through the lens of neurolaw. Law and the Senses. http://lawandthesenses.org/probes/objective-justice-subjective-pain-a-fresh-look-at-pain-and-suffering-in-torts-through-the-lens-of-neurolaw/
Image credit: 123rf.com, used under license