Pain and Suffering Lawyer – How To Calculate The Damage
Pain and suffering is a common term you hear often when car, pedestrian, and motorcycle accidents, as well as Pain and Suffering Lawyer are discussed. Pain and suffering is a subjective way of measuring how you get harm. After your medical bills and records have been evaluated, your paychecks reviewed, then comes the claim of pain and suffering. How is it measured?
Pain and Suffering As a Measure of Damage
In Arizona law, an essential element of a claim is damages. This means that you must have suffered actual harm or injury and offer proof of it at trial. When it comes to personal injury and car accident cases, you are entitled to compensation for all of your injuries, past, present, and future. Among your compensable damages are all economic damages. Such as medical expenses, lost earnings, and missed school, and non-economic damages, specifically pain and suffering.
So, what constitutes compensable pain and suffering? What can you expect during the trial and in court? What should you do to document your pain and suffering to ensure the trial goes as smoothly as possible? Keep reading for those answers.
Pain and Suffering Defined
At its most basic, pain and suffering is the legal term. It is the way to describe the physical and mental stress that happens as a result of an injury. In legalese, pain and suffering is an element of general, compensatory, non-economic damages. These entitles the plaintiff to recover for the mental anguish and physical pain endured by the plaintiff as a result of the injury that is central to the case at hand. It is separate from the economic damages that are more easily quantifiable. Such as emergency room bills and lost wages from time missed at work.
What exactly will constitute pain and suffering varies from case to case, but often includes:
- Aches and Pains
- Soreness, stiffness and other discomforts.
- Chronic pain
- Worsened pre-existing injury
- Loss of Enjoyment of Life
- Inability to participate, temporarily or permanently, in activities.
- Limitations on interacting with loved ones.
- Mental Disorders
- Memory loss
- Physical disfigurement
- Shortening of life
Essentially, pain and suffering can and does occur as a result of treatment for injuries you’ve sustained. Surgery, physical therapy, long hospital stays, confinement to bed rest, side effects of medication, and stressful psychological visits can all create and contribute to your pain and suffering. It is important to keep in mind that pain and suffering damages must compensate today for possible future injuries, mental and physical as well as future pain and suffering from ongoing medical care.
Pain and Suffering Lawyer in Court
The laws of Arizona seek to restore you, as closely as possible, to the position you would be in had the injury and negligence you suffered never occurred. This is known as making you ‘whole,’ and requires an accounting of just what injuries and costs you suffered so that the fact finding jury may make a determination. The jury’s role is to weigh the facts and decide what dollar amount, if any, will make you whole. You and your attorney must show these damages so that the jury can fulfill this function.
Proving Your Pain and Suffering as Damages You Suffered
Because of the personal nature of pain and suffering, it differs from so called ‘specific’ damages (medical bills, lost earning, etc.) in that there is no easily determined method of quantifying the injuries suffered. Thankfully, courts do not demand a precise accounting of pain and suffering damages. The damages do not need to be shown with mathematical certainty.
Damages must be shown by substantial evidence. Lay witnesses, witnesses that are not testifying as experts and subject to lesser standards to testify, are permitted to speak on the stand as to physical and mental conditions observed. Lay witnesses are extremely helpful in establishing pain and suffering damages, as they can testify to your appearance and behavior before and after the incident at issue. More importantly, lay witnesses are permitted a certain leeway in testifying to facts that require a small element of inference. Thus, a lay witness may testify regarding your pain and suffering without any special expert training in a healthcare field. These lay witnesses could be considered experts on you. In that they can testify regarding their observations of you before and after the accident. These are often co-workers, friends and family, and members of your community.
Expert witnesses will also be critical in helping to convey pain and suffering damages. As they are able to leverage knowledge and experience to explain to the jury the nature and extent of injuries. Biokineticists will show the forces applied to the body during the accident. While healthcare professionals can testify to their experiences with prior patients with similar experiences.
Measuring Pain and Suffering as Damages
Because the standard for damages is to restore you to the state you would have been in without the defendant’s conduct, there is no hard and fast standard for determining pain and suffering awards. The defendant must accept the risk of uncertainty for his or her conduct. The jury’s job is to evaluate the circumstances of the injuries as well as the credibility of all witnesses and the parties themselves. The courts will only interfere where an award ‘shocks the conscious’ or it is obvious that the jury’s findings were based on prejudice or passion. Where the judge or appellate court finds such it may reduce the award or order a new trial. The most important aspect of pain and suffering damages is thus the sincerity of witnesses and yourself.
A number of damages to be awarded need only be supported by a reasonable basis, which is a lesser standard than needed when proving damages. Once damage is proven, attorneys (and insurance adjusters) have several methods of obtaining a rough calculation of the damage amount they will request from the jury.
Using this calculation, the attorney will multiple your special damages (medical costs, etc.) times a number between 1 and 5, bases on the severity of the injuries. The multiplier will also vary depending on the type of pain and suffering, its duration, and available evidence to convince the jury.
Per Diem Method
The per diem (per day) approach assigns a certain amount to each day from the day of the injury up to when the plaintiff is fully Okay. You and your attorney will choose the amount based on values assigned to activities you missed out on due to your suffering.
Using these methods, as well as research into previous jury verdicts for similar injuries, your attorney will make your case before the jury to award you the asked for amount.
Documentation of Pain and Suffering
You want to make it as simple as possible for the jury to link the accident to your injuries and the subsequent pain and suffering. Documenting both your physical and mental anguish is vital in making ‘whole’. Physical pain and suffering can be described through medical reports, receipts for prescription and over-the-counter medicines, and medical bills. A log of all medical treatment, pain, and missed activities stemming from the accident can help the jurors draw the connection between the accident and your pain and suffering. Photos of your physical injuries can serve as visual aids to an otherwise clinical narrative of the accident and your anguish.
Emotional distress is often harder to prove but can be described in similar ways. Bills and medical logs from psychologists and psychiatrists can serve to frame your mental suffering. Your healthcare professionals can offer a narrative of the emotional pain you went through and continue to experience post-accident. Letters or notes from loved ones, community leaders, and employers commenting on your mental state may also be of use.
It may also be wise to keep a journal documenting your day-to-day emotional health. Such a diary used as evidence of emotional turmoil at trial. Prescriptions from drugs for psychological issues are also extremely important in showing emotional injury.
The most important factor in recovering for pain and suffering is you. While carefully documenting your emotional state and expressing it before a panel of strangers is understandably daunting. Your sincere request for relief from your life altering accident will be vital in your court case. It is just as necessary for the jury to understand the facts around your case; as it is to understand how it impacted your present and future.