Valuing Pain and Suffering Damages
UPDATED: February 5, 2020
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Putting a value on pain and suffering is probably the most difficult task for a jury in any injury case. There is no scientific formula and no chart or table juries, attorneys or insurance companies can look to. Every injury, every injured person, every accident and every case is different and deserves a thorough evaluation. Two people can have the same injury and one can suffer little while the other suffers a great deal; or one offers better proof than the other with more complete documentation or better witnesses; or they can be in two different parts of the country and get completely different settlements or awards.
There are many, many factors that must be taken into account to determine how much money someone will get for their pain and suffering. Juries and insurance companies look at the credibility of the witnesses. Were the injured person’s actions consistent with those of someone who was in pain? Were there any pre-existing injuries? Were they able to do what they normally do in their everyday lives, or were they forced to change or reduce their activities. What is their tolerance for pain in general? What do they do for a living? What is their marital status and family situation? How sympathetic a witness do they make? How skilled is their attorney at presenting their case? All these factors go into the evaluation of pain and suffering. Having said that, suppose we look at a hypothetical case where everything is practically the same for the injured parties, so you can see how the above factors added either one at a time or in combination, effect the outcome.
Suppose three people were injured on a bus. They all have the exact same injury, were treated by the same physician, received similar treatment, and incurred the same medical bills. They are all in their mid-thirties, live in the same zip code area, used the same lawyer to represent them and were all able to go back to their regular activities after 3 days of rest and recuperation. They are all homemakers in their mid-thirties. Will they all get the same amount for pain and suffering? On the surface, they should, right? But, what if homemaker A has a lower tolerance for pain than homemakers B and C? Shouldn’t she get more because she suffered more? If she can convince the jury or insurance company of this, then, yes, she will probably get more. Even one small difference can change everything.
Now, let’s take a look at the real world where no one and nothing is the same. The following changes may each, or in combination with other changes, have an impact, sometimes a significant impact, on the amount each person will be awarded for pain and suffering.
Let’s keep the first person a homemaker, and make the second a blue-collar worker for the postal service, making $35,000 a year. The third is a successful accountant who earns $250,000 a year. The attorney brought the lawsuit against the bus company and tried the case together before the same jury. Will they all get the same amount for pain and suffering? Again, in theory, they should. Nothing is different, except their jobs and incomes, and what does that have to do with pain and suffering? Might the jury see the accountant as well off and not as needy as the postal worker and, thus, give him less? Might the insurance adjuster see the homemaker as someone who can afford to stay home, also not so needy? Might they see the postal worker as the hardest working among them, and want to give him more money? Job and income can definitely tip a jury one way or the other.
• Different ages
The homemaker is 32, the postal worker, 50, and the accountant, 67. Will there be a difference in the amount they each get for pain and suffering now? Quite possibly. Why? The accountant, at 67, is likely close to retiring. A jury may see that he probably has saved a lot of money given his large income and is ready to retire and is not as needy as the others. Pain and suffering is not based on need, but juries are people just like you and me and swayed by things that talk to all of us. Or they can see it the other way, that he’s older and probably suffered more because his body is not in as good shape as the others. At 50, the postal worker likely has years to go before he retires and doesn’t make a lot of money as it is. They may be sympathetic to his plight and give him more. The homemaker is young and will probably heal quicker. Or they may see her as having suffered more because she had to continue caring for children while healing from her injury. So you see how a small change like the age of a person may have a big impact on the award, in either direction.
• Different community/lifestyle
The homemaker lives in a suburban, gated housing development in a single-family home. The postal worker lives in a one-bedroom apartment in an urban area, and he travels everywhere by bus. The accountant lives high in the hills over an urban area in a 4-bedroom house, and has a housekeeper. Will this change make a difference? It could very well. The postal worker is obviously (to a jury) the least well off and may come across as the neediest. Should that have anything to do with pain and suffering? It could; everything does. He has to take a bus to work from where he lives—that might equal more inconvenience for him, and they may be more sympathetic to that. The homemaker seems to be in very comfortable surroundings and she has chosen not to work or doesn’t have to. They may not want to give her much. And with a housekeeper, the accountant may not evoke much sympathy.
• Different attorney
Now let’s add a different attorney for each injured person into the mix. The homemaker’s husband is her attorney. He is really a family law attorney, but he thought he could handle this for his wife. The postal worker hired a personal injury attorney who represented his friend in a car accident. He’s been out of law school for two years and works for a small law firm. The accountant hired a personal injury attorney with whom he shares office space, and who has practiced for twenty years. Will this make a difference? Most definitely. You want an experienced attorney who knows how to evaluate your case, how to tell your story convincingly to the other side and to a jury, how to negotiate and advocate for you. I would bet the accountant would do better here than the other two as a result of their choices of attorney.
• Where the case is filed
If the accountant’s case is filed in New York City, the postal worker’s case is filed in Broken Bow, Nebraska, and the homemaker’s case is filed in Des Moines, Iowa, who do you think has a chance of getting a higher award for pain and suffering? If you said the accountant, you are probably right. It matters where the case is filed. Juries in urban areas, in general, award more money than in small towns and rural areas. Big cities generally award more than small cities.
• Attitude/witness quality
Suppose the postal worker is honest, but hesitant when he testifies because he’s nervous. He has trouble telling his story because he can’t find the right words. He looks scared to death. Perhaps the accountant has a bit of an attitude, and it comes across to the jury that he thinks he has a lot of money coming to him. His body language shows that he thinks he’s very important, he keeps looking at his watch, and he winks at a young woman on the jury. He also grins inappropriately when questioned by opposing counsel. The homemaker is confident in her testimony, well spoken, and comes across as honest. How will these “performances” affect the amount of money these people will get for pain and suffering? Well, if you were on the jury, would you want to give a lot of money to the snooty accountant? Wouldn’t you be more inclined to give more to the nice homemaker and the nervous postal worker?
• Pre-existing injury
Suppose we add to the mix, that the postal worker has had a pre-existing back injury. He was treated about three years ago for back and shoulder pain caused by carrying a postal bag for years. Nine months ago, the postal service allowed him to start driving a postal truck so he doesn’t have to carry the bag. He says his back has been fine for about 6 months now. Will this change his award for pain and suffering? Possibly. The jury may believe that his old injury was aggravated and he’s had more pain as a result, making them want to give him a greater award. Alternatively, they may believe that he wasn’t that injured on the bus—this is just his old back pain that never went away, causing them to want to give him less. He and his attorney will need to convince them of the first scenario to come away with a higher award.
• Medical Treatment
The homemaker went to a chiropractor three times a week for treatment for three months following the accident and the chiropractor wants her to continue coming once a week for maintenance for another three months. The postal worker went to his HMO doctor once and was told to use ice and heat and take ibuprofen for one week. The accountant went to an orthopedist, had x-rays, saw a physical therapist twice and was done. Does the medical treatment received have an impact on pain and suffering awards or settlements? You bet! If the amount and type of treatment appears to be reasonable and necessary for the injury, the injured party comes across as much more honest to the jury. More or less treatment does not necessarily mean more money for pain and suffering, but it’s definitely another factor that is considered. Of course, running up the bills unnecessarily is looked at with a fair degree of suspicion. Stretching out treatment for a minor injury may look like greed to a jury and certainly to an insurance company.
Again, all of these factors, working alone, or in concert, create a picture for the jury and the insurance company that will have an impact on the monetary compensation for pain and suffering in one way or another. All that being said, the amount of dollars awarded for pain and suffering are not just pulled out of a hat. There are some tools that insurance companies and lawyers may use to help them arrive at a figure or at least a range for the purpose of determining how much to “demand” from the other party or how much to ask a jury to award. There are reports of past jury verdicts in virtually all states that can be reviewed to determine if there is a case with similar circumstances and/or injuries and/or medical expenses. These publications can be used as a general guideline along with all of the factors discussed above to come to a fair evaluation of the case. Your experienced personal injury attorney will know how to assess the value of your pain and suffering--what factors to include and what resources to utilize.