What to Consider When Calculating Damages

One of the most commonly used phrases in personal injury law is "pain and suffering." It pops up so often during a trial that lawyers often forget to explain exactly what this term means. In an age where "pain and suffering" have been twisted to mean "frivolous lawsuits," it's important to prove to jurors that "pain and suffering" is a real thing, and clients deserve compensation for it.

California law allows for nine different types of pain and suffering when asking for non-economic damages. These are outlined in CACI 3905A as "past and future physical pain / mental suffering / loss of enjoyment of life / disfigurement / physical impairment / inconvenience / grief / anxiety / humiliation / emotional distress / [insert other damages]."

Before starting trial, it is a good idea to sit down with a client and determine which categories apply to their case. Take the time to ask questions and record their answers, including personal stories that could be shared during opening and closing statements. This allows you to think about how deeply this injury or death has impacted a client, and how it will continue to do so in the future. In complex cases, the list could go as high as 20 different types of "pain and suffering."

So what are the different types of "pain and suffering" allowed by CACI 3905A? Here's a brief explanation of each of the nine categories.

Physical pain. The result of damage to the body or mind, which can impair the client on a daily basis. What were the days like immediately after the accident? Are they still in pain? What do experts predict for future recovery?

Mental suffering. Negative feelings, such as anguish, sadness, depression, or suicide, caused by the injury. Has the client consulted or been seen regularly by a psychiatrist or counselor? Are they on medications for depression? Have they had suicidal thoughts?

Loss of enjoyment of life. The ways an injury has altered the client's lifestyle, including family life and hobbies. How has their ability to participate in social activities changed? Are they still able to enjoy the same hobbies? Can they participate fully in family life?

Disfigurement. Changes to a client's physical person because of the injury. What physical changes have occurred? Are they scarred or burned? Did they lose a limb? How has this contributed to other types of "pain and suffering"?

Physical impairment. Physical function is limited or impaired. What damage was done immediately or over time? Has their range of motion been limited? Can they still walk? Do they require use of a wheelchair?

Inconvenience. Any delays or changes in the client's ability to participate in daily life, including trouble or difficulty. How long does it take to go up stairs or go to the bathroom? Does she require assistance for basic daily activities? Does he need help getting dressed every day? Is he able to stay at home on her own?

Grief. While usually associated with death, grief is also a response to injury or pain. How has the patient grieved the injury? Were they depressed or in denial? Do they still experience these emotions? It can be painful for a client to revisit this time in their life, but it is a powerful when outlined to a jury.

Anxiety. An inner response to a traumatic event, including fear or worry. Are they able to drive after an accident? Have they experienced fatigue or problems coping as a result of anxiety? Are they able to complete simple tasks? Or is it hard to focus because of worry?

Humiliation/emotional distress. Feeling "put down" or embarrassed. This is especially applicable to sexual abuse cases. Did the plaintiff's actions cause embarrassment or public humiliation? Is it embarrassing to need help using the bathroom?

During closing argument, invite the jury to record and assign an award for each of the ways a client experienced "pain and suffering." Adding these separate amounts together may result in a larger award rather than asking for a total award. A jury that is intimidated by a large award number will be less intimidated to see how each of these damages will apply to specific injuries or losses.

Stories of the "pain and suffering" experienced by your client will allow a jury to experience the variety of ways your client has been affected, which will motivate them to fully compensate your client. Help them to this result by providing multiple avenues for a jury to reach an adequate sum.

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