Help the jury understand pain and suffering: an award of economic damages is not enough to make your client whole. Jurors must provide compensation for human losses as well.

From misguided people in high places to misinformed people in low places, from gigantic billboards to small-print media, and from corporate boardrooms to barber shops and salons, antiplaintiff messages are everywhere. Jurors are inundated with propaganda that bemoans malingering plaintiffs and greedy lawyers seeking windfall awards. Small wonder, then, that adequate awards for pain and suffering are as rare as punitive awards--and that during jury selection, potential jurors sometimes say things like this:

"Life is hard. Pain, suffering, and mental anguish are a part of it."

"She doesn't look injured."

"He has only 10 percent whole-body impairment."

"Money won't make the pain go away or even soothe it."

"Lawsuits don't heal patients."

"If you can't measure it, you can't price it."

"People always look to blame others for their own mistakes."

Jurors have been conditioned to hold a miserly view of human-loss claims--including pain, disfigurement, disability, suffering, and loss of enjoyment of life--and many consider them and punitive damages claims repugnant. Health care professionals, who see noncompensable pain and suffering every day, believe that pain-and-suffering awards against them are punitive--which validates this perception for jurors.

Our job as trial lawyers is to decondition jurors, to make them recognize our injured clients' pain, and thereby to obtain fair damages awards. We must ensure that jurors understand that the purpose of a pain-and-suffering award is to provide the plaintiff with full compensation for the injury, not to punish the defendant. This is a difficult task, but it can be easier if you ask yourself a few key questions and raise them during jury selection or closing argument:

* How can jurors be trusted to make life-and-death decisions in capital cases--but not trusted to make judgments about appropriate awards for pain and suffering?

* Why is intense pain and the fear of prolonged suffering the most frequently cited reason for requests to terminate life?

* How can jurors be trusted to comprehend technical and scientific evidence in antitrust, securities, patent, or products liability litigation--yet not trusted to understand the difference between awards that compensate plaintiffs for loss and awards that punish defendants for misconduct?

During the 200 years before tort "reform," jurors knew the difference between compensatory and punitive damages. They knew that human-loss awards were not punitive, and they returned appropriate awards for pain and suffering. Now that the tort "reform" campaign has obscured that distinction in many jurors' minds, you must make it clear once again.

The differences between compensatory and punitive damages are stark and easily explained to jurors:

* Compensatory damages serve to make the injured party whole by putting the person in the position he or she would have been in had the tort not occurred. Punitive damages are designed to enhance compensatory damages and are awarded to punish the defendant and deter similar wanton, reckless, or malicious conduct in the future.

* In some states, a portion of the punitive damages award goes to the state, not to the plaintiff.

* In some states, the burden of proof is higher for punitive damages claims than for compensatory damages claims.

* Punitive damages are so separate from compensatory damages that punitive awards often are determined in a separate trial.

In talking about pain and suffering, word choice is important--jurors react better to "human loss" than "noneconomic loss." Some lawyers even suggest that the phrase "pain and suffering" carries a negative association and that the word "award" should not be used because it connotes a prize being given rather than a debt being paid.

Human-loss damages compensate for the lost opportunity to enjoy life's pleasures. In some states, loss of enjoyment of life is not a separate element of damages; rather, it is a factor in determining damages for pain and suffering. Other states consider loss of enjoyment of life simply as a part of disability and, therefore, prohibit a separate instruction on loss of enjoyment of life. (1)

Damages for pain and suffering compensate for a wide array of injuries, including physical pain, anxiety, depression, and the resulting adverse effects on the plaintiff's lifestyle. Pain is physical; suffering is emotional:

   Physical pain is the unpleasant sensation
   that results when a stimulus causes the firing
   of neurons, which in turn results in a
   message being sent through specific nerve
   pathways into the brain. While pain is the
   physiological response to certain stimuli,
   suffering is the psychological or emotional
   response to pain. (2)

Pain is the hurt you feel in your back when you bend to pick up your toddler; suffering is the mental hurt you feel when you know you can't bend to pick up your child without enduring excruciating physical pain.

Pain and suffering are necessarily intertwined, experts say:

   Apprehension, fear, guilt, depression, worry,
   and anxiety--all mental effects of
   pain--seem to have as much to do with the
   physical deterioration of the patient as does
   the pain itself.... The mind and body are
   connected. This bond between the physical
   and psychological gives rise to the concept
   of suffering.... Components of suffering
   include: sadness, anger, loneliness, depression,
   grief, unhappiness, melancholy, rage,
   withdrawal, yearning, powerlessness, helplessness,
   hopelessness, isolation, and unremitting
   fear. (3)

Because suffering can take so many forms--and because many injured people choose to suffer in silence--it is not surprising that plaintiffs who experience painful injuries suffer in one or more of the ways listed above.

Understanding jurors' perspective

No one is immune from misfortune. An argument based on the sentiment "There, but for the grace of God, go I" helps drive home the stark reality of human loss. The drive is not easy. Indeed, human nature has placed numerous bumps in the road that you must negotiate:

* Pain is so unpleasant to endure that jurors don't like to think about it, let alone discuss it and assign it a monetary value.

* Most jurors believe they are more likely to be sued than they are to file a lawsuit. A self-preservation bias prevents jurors from imagining themselves as injured plaintiffs with serious problems.

* A similar phenomenon called defensive attribution bias, by which jurors subconsciously disassociate themselves from the plaintiff's human losses, also creeps in. This bias "attributes the adverse outcome to the plaintiff's lack of diligence in taking care of himself or herself," making defenses based on personal responsibility and the idea that "stuff happens" effective. (4)

* Jurors are also influenced by so-called availability bias: "People generally criticize and judge most harshly that which they are most familiar with. ... [T]hey are most likely to at least initially, scrutinize and criticize the plaintiff with whom they share similar life experiences." (5)

* Jurors, swayed by tort "reform" propaganda, believe that they will be harmed financially by large verdicts. They think that compensatory damages awards for, noneconomic losses drive insurance rates up and that punitive damages awards cause defendant companies to pass the cost on to the public.

You must convince jurors "to steel themselves to the disagreeable task of looking at the reality of what pain is and what it does to a person" (6) by confronting physical pain, disfigurement, disability, and mental suffering. You can use creative strategies to combat self-preservation bias, defensive attribution bias, and availability bias.

Making your case

Establish compensable pain. Show that your client's aches and pains are unlike the ones jurors experience in ordinary day-to-day living. If you show that a debt is owed, jurors will be motivated to "fix what can be fixed, help what can be helped, and make up for (balance) what cannot be fixed or helped." (7)

Show the unique effect of the injury on your client. Not only do people have different pain thresholds, but two soldiers, for example, who simultaneously sustain similar shrapnel wounds may respond completely differently. One may suffer only from chronic physical pain, while the other has a permanent emotional disability such as posttraumatic stress disorder.

Use disinterested witnesses. In a car-crash case, talk with the paramedics, who may be able to describe the pain and suffering they saw when they first encountered your client. Talk to the tow truck driver who crawled under the car and can report the damages he or she observed. Extensive damage to the chassis indicates the force of the impact and resulting injuries.

Chat with your client's mail carrier, neighbors, and coworkers. They may have seen your client in pain when he or she didn't notice that they were around. These independent witnesses can talk about your client's obvious heroic efforts to improve.

Watch your language. Don't allow jurors to reduce the pain-and-suffering award because of the terms you use. Don't talk about whiplash or sprains. "Neck trauma" and "back trauma" resonate better with jurors. The lawsuit should not be a "whiplash injury" case or a "connective injury" case--it should be a "connective-tissue trauma" case.

Also, do not refer to the defendant's "mistakes." Jurors are loath to hold someone legally responsible for simple mistakes. Instead, phrase the issue of negligence as a violation or disregard of minimal written standards, unwritten but long-established customs or practices, or basic ethical or legal rules.

Focus on the defendant's choices. When you show the jury all the opportunities a defendant had to prevent harm to the plaintiff--compared with only a few, if any, real choices available to the plaintiff--the personal-responsibility defense becomes a double-edged sword. (8)

Wrap yourself in the law. Make sure the jurors understand that they have a legal obligation to do justice. Consider this argument:

   You've seen exactly how the wreck affected
   the plaintiff's life. State law says she is entitled
   to full justice--to fair and frill compensation.
   It is not a law I made up; it is a
   law the judge will give you and that you
   must follow. You are required, by law, to
   award money damages for all the plaintiff's
   pain and a separate amount for all her suffering
   that resulted from the wreck.

      Why? Because you cannot restore the
   plaintiff to the healthy, pain-free, comfortable,
   high-energy life she had before
   the defendant negligently took it away
   from her. Here's what our court says: "The
   objective of any proceeding to rectify a
   wrongful injury resulting in loss is to restore
   the victim to his original condition
   and give him back that which was lost, so
   far as possible by compensation in money.
   The goal is make the plaintiff whole." (9)

Make pain real. Tell jurors that the amount of damages does not have to correspond with how awful the injury sounds: Amputation and third-degree facial burns sound horrible, but they may not be worse than continuing pain. Ask jurors to think about the worst pain they've ever experienced:

   You probably don't think first of broken
   bones. Migraine headaches can bring us
   to our knees but not because we have broken
   skull bones. Slamming our fingers in a
   door can cause excruciating pain even
   though we don't break a bone. A toothache
   will bring tears, not because a tooth is
   broken but because the nerve is exposed.
   Think about a pinched nerve, a burn from
   hot grease, your worst earache, excruciating
   menstrual cramps. No broken bones
   are involved.

      Such pains will go away. You can say to
   yourself: I have to endure it for only a few
   more hours or days. But intense, recurring
   pain can be unbearable.

Stress the need for protection. All people need and want to be protected from harm. The defendant didn't provide that protection, and, as a direct result, the plaintiff was injured. Let jurors know that by protecting your client, they can protect themselves. Your client needs protection now only because the defendant didn't protect him or her before.

Recast disability ratings. If the plaintiff's treating doctors testify that the plaintiff has "only" a 10 percent impairment, put that percentage in the proper perspective:

   If a professional golfer could improve his
   score by 10 percent on the average, he
   would win every golf tournament he enters.
   If you could increase your income by
   "only 10 percent a year," you would consider
   that an enormous raise. If the federal
   government raised your income tax by
   "only 10 percent," would we consider that
   "insignificant"? (10)

Link economic and noneconomic damages. If medical costs are $250,000, many jurors will think $25,000 for human loss is paltry. Ask jurors, "How can the human loss be worth anything less than the economic cost of keeping [my client] alive?" (11) Pairing economic and noneconomic damages allows jurors to use a number they have already endorsed as an anchor to which they can tie human-loss damages. (12)

For the plaintiff to be made whole, jurors must understand that they need to provide compensation for both economic and human losses. The civil jury exists to put the plaintiff back where he or she was before the injury occurred.

The debt to the plaintiff has to be paid. Awarding human-loss damages does not punish the defendant. It makes your client whole.

Notes

(1.) See generally PHILIP H. CORBOY & SUSAN J. SCHWARTZ, ATLA'S LITIGATING TORT CASES: PAIN AND SUFFERING AND NON-ECONOMIC DAMAGES [section]24:7 (Roxanne Barton Conlin & Gregory S. Cusimano eds., 2003); see also Lombardo v. Hoag, 634 A.2d 550, 562 (N.J. Super. Ct. App. Div. 1993); cf. Swiler v. Baker's Super Market, Inc., 277 N.W.2d 697, 700 (Neb. 1979).

(2.) DAVID LOGAN & WAYNE LOGAN, NORTH CAROLINA TORTS 178 (1996).

(3.) PATRICIA W. IYER, MEDICAL-LEGAL ASPECTS OF PAIN AND SUFFERING 73 (2003).

(4.) Mark S. Mandell, Overcoming Juror Bias: Is There an Answer?, 2004 ATLA ANNUAL CONVENTION REFERENCE MATERIALS 1556; see also Quentin Brogdon, Why Do Jurors Blame the Victim?, TRIAL, Dec. 2003, at 52.

(5.) Mandell, supra note 4, at 1556.

(6.) THE ANATOMY OF A PERSONAL INJURY LAWSUIT 398 (John E. Norton ed., 22d ed. 1968).

(7.) DAVID BALL, DAVID BALL ON DAMAGES 2 (2001).

(8.) Tom Vesper, Connecting with the Jury: The Seinfield Syndrome Revisited, 2004 WYOMING TRIAL LAWYERS ASSOCIATION ANNUAL CONVENTION REFERENCE MATERIALS (2004).

(9.) Shaver v. N.C. Monroe Constr. Co., 306 S.E.2d 519, 526 (N.C. Ct. App. 1983).

(10.) David R. Bossart, Voir Dire, 2004 ATLA ANNUAL CONVENTION REFERENCE MATERIALS 1131.

(11.) Tom Duffy, "Anchors" Are the Key to Winning the Battle for Non-Economic Damages, LAW. WKLY. USA, July 19, 2004, at 13.

(12.) Id.

CHARLES L. BECTON is a partner with Becton, Slifkin & Bell in Raleigh, North Carolina.