This is one of the most difficult dilemmas created in a personal injury case. Compensation for pain and suffering is difficult because, unlike other damages like medical expenses and lost wages, there is no easy or readily available way to objectively measure pain and suffering, and there is no retail price or pricing scale to rely upon.
Case law tells us that awards for pain and suffering must come from the “enlightened conscience” of the jury. Unfortunately, this does not give jurors much guidance.
When we argue damages for our clients, we generally try to compare their pre-accident lives to their lives since they’ve been injured. Someone who wakes up every day in debillitating pain and faces a life-time of prescription pain medicine might be entitled to more pain and suffering damages than someone whose life has been barely changed by their injuries. Someone who dreamed of being a prima ballerina, but lost a leg in an accident, might be entitled to a significant award for a dream lost. Ultimately, if a case proceeds to trial, it would be up to the jury to decide this issue.
There is no formula or set way that a jury, or insurance company, must analyze someone’s pain and suffering. However, sometimes we offer them a suggestion of one way to look at it. Sometimes we suggest that a person’s leisure time is their most important time — most people work hard for somebody else so that they can spent the time the belongs to them doing the things that they love. We argue that this “me” time has a value, and many times to the injured person this “me” time is more valuable than the hours they spend grinding out a living.
We ask whoever is analyzing the claim to consider all of the hours that our client has to deal with the mental and physical pain and suffering in an everage day. We ask them to calculate how many hours per week our client experiences the pain and suffering, how many weeks per year, etc. We then ask whoever is analyzing the claim to multiple this times 52 (weeks per year), and then multiply that by our client’s statistical life expectancy.
Even though there is no formula, we believe this is a fair way to look at pain and suffering damages — although there are others.