The difficult thing about awarding damages for pain and suffering is trying to assign a dollar value to something that’s intangible. It’s not always just about the physical pain and suffering; it’s also the mental anguish and suffering endured. It can be a bit subjective. The legal definition of pain and suffering is “the enlightened conscience of a fair and impartial jury,” meaning it is up to 12 strangers on a jury to decide what they are going to award for past and future pain and suffering.
The first factor to consider when quantifying pain and suffering is the severity of the injury or injuries. For severe injuries, a large amount of compensation should be awarded. Conversely, if the injury is relatively minor (cuts, bruises, temporary soreness), the award typically is lower.
Another factor for the jury to consider is the length of suffering. Permanent, lifelong suffering usually results in the largest amount of compensation. Pain that only lasts a few days generally is compensated at a much lower level.
When a case goes to trial, the judge will give the jury examples of what it can consider when determining pain and suffering compensation. Some examples include fear, shock, anxiety, actual and future pain and suffering, loss of earning a living, etc.
Another factor that can affect the value of pain and suffering is the venue or county the case is in and what the jury pool looks like. There are conservative counties where jurors typically award less, unless someone has been injured severely, and there are some venues that traditionally award more for pain and suffering damages.
The injured person’s ability to convey the extent and impact of his or her injuries also can affect the amount awarded for pain and suffering. Concrete examples of how the injuries negatively affected one’s life are helpful. The ability to express those things truthfully and effectively to the jury, in a way that jurors can connect with, helps the jury understand the injured party’s position. Witnesses who can testify to the injured person’s abilities before and after the injuries were sustained also can influence how much compensation he or she receives.
There is no formula for calculating pain and suffering across all personal injury cases. Each case is different, and the amount of compensation awarded should be tailored to the specific facts of each one.
– Joel Williams is a partner at Williams|Elleby, a Kennesaw-based personal injury law firm. www.gatrialattorney.com.