Arguing Damages, Element by Element – Part 2

Arguing Damages, Element by Element Part 2 – Mental Anguish, Pain and Suffering

The man who is to be in command of [effecting persuasion] must, it is clear, be able to reason logically, to understand human character and goodness in their various forms, and to understand the emotions that is, to name them and describe them, to know their causes and the way in which they are excited.

–Aristotle, Rhetoric

For damages, do not show that money will make the injured person’s life easier; rather, show how money will provide that wheelchair-equipped car so that the injured person can return to the safety and companionship of society. Below are several approaches that I have used, and some would say worked for me.

Damages Arguments That Work

Part 1: Dollar Amounts, Medical Expenses

Part 2: Mental Anguish, Pain and Suffering

Part 3: Lost Earnings and Capacity, Physical Impairment

Part 4: Death

Part 5: Sympathy, Disfigurement

Part 6: Gross Negligence and Punitive Damages

Part 3. Mental Anguish

a. “Enough Isn’t Too Much”

Final Argument is the last chance to help the Jury grasp the mental anguish claim, by putting some handles on the concepts. Sometimes this analogy has helped:

Making Mental Anguish Palpable

“Tom played hard in the game of life. He had some penalties. He scored some touchdowns. He wanted to play the last quarter. But during the game, he was blindsided.

Now he’s out of the game. He’s off the field. Now he must watch from the sidelines. Tom can’t influence the score these days. Winning is out of his control. Now Tom is on the sidelines. Tom is a spectator of the game of life. Tom is just watching, and waiting for the game to end.”

Part 4. Pain and Suffering

a. The Value of Pain

People don’t easily think about pain: It’s too painful. Final Argument is the last chance to charge the Jury with honorably considering pain, putting it in perspective and, hardest of all, putting a price tag on it. Here is a head-on approach:

Putting a Price Tag on Pain

“I can’t define pain. Maybe you can’t, either. It’s difficult even to talk about it. It’s even harder when we’re talking about excruciating pain for a little guy like Teddy. We’d rather not even think about it.

It’s harder still when we try to say what pain is worth in terms of dollars. When my cousin broke his ankle last month, he said, ‘I wouldn’t go through that kind of pain again for all the money in the world: Most of us know what he meant. We wouldn’t ever choose to endure agony in exchange for money. That’s why your responsibility to consider pain is so important. Maybe this will help.

If you believe in the Bible, you know pain was God’s punishment for our original sin. We’ve heard stories of people who begged to die so their pain would stop. We’ve heard descriptions of hell as pain that never ends. We know the laws of this great nation punish criminals by death, but not by pain.

To suffer pain because someone was negligent is wrong. That’s obvious. But how can we calculate the price of pain? It’s a daunting prospect.

There are some things we do know. We know that Americans spend billions of dollars each year on medicine to relieve pain. We know that, statistically, Teddy is likely to live another 136,000 waking hours–– every one of them painful. Most of us can’t even hack an hour of pain like Teddy’s. We do whatever we can to avoid it.

We pay $50 for a shot of Novocain to keep us pain-free while the dentist drills on our teeth. At that rate, Teddy’s pain would be worth $6.8 million.

We pay $250 for a dose of general anesthetic in the hospital to avoid surgical pain for an hour. That would make Teddy’s pain worth $34 million.

I could ask you to endure Teddy’s pain and suffering for an hour. I’d pay you $10 to suffer the pain that Teddy endures all the time. I doubt if you’d take me up on it. If you did, you’d regret it before 10 minutes went by.

The law says we can ask for a certain amount of money for a unit of time. The smallest unit of time is a second. The smallest amount of money is a penny. We ask you to compensate Teddy a penny for every second of his agony. That’s as low as we can go.

The seconds turn into minutes. The minutes turn into hours. The hours turn into days. And the days feel endless to Teddy. For 136,000 hours of Teddy’s pain and suffering, at a penny a second, we ask for $4.9 million.”

It is important for the Jury to understand the need to do more than pay the medical bills. A “tip of the iceberg” analogy makes it more understandable.

Validating the Harm

“The total of the Plaintiff’s medical bills doesn’t amount to a tiny fraction of the harm. In medicine, the harm goes well beyond any efforts to repair the harm. It’s true in other areas as well.

Let’s say a Picasso masterpiece was slashed with a knife. If we used the theory of the Defense, the cost of repair would be a buck for a roll of duct tape to patch up the back of the canvas. But that roll of tape doesn’t represent anything like the actual loss.

Special damages are the tip of the iceberg. Another huge hunk is under the water’s surface. If we were able to submerge ourselves, to look through the muddy water that my Opponent stirred up, we could see the real magnitude of the case. The value of the Plaintiff’s loss is monumental.”

b. Valuing the Life of an Infant

We depend so much upon words to express ourselves that it’s hard to imagine life without them. It’s important to personalize an infant Plaintiff in order to validate the legitimacy of his pain and suffering, despite the fact he can’t express it. Here is one way:

Validating an Infant’s Pain, Anguish, and Loss

“Dying doesn’t hurt less because you’re five months old. It doesn’t hurt less because you’re unable to articulate your pain. It doesn’t hurt less because you’re unable to communicate your fear. It doesn’t hurt less because you’re unable to say that you think you’re about to die. It doesn’t hurt less because you’re unable to tell anyone that you feel betrayed, abandoned, and lost in the system. It was just as real to Richie as it would be for you and me to stop breathing until our hearts stopped.”

c. Valuing a Parent’s Anguish

Particularly when a child Plaintiff has been severely damaged, it’s sometimes tempting to the Jury to discount the corollary injury to the parents:

Validating the Parents’ Anguish

“My Opponent has suggested that our claim for damages on behalf of the parent is piling on. Let me assure you, Helen’s pain is real and her anguish is legitimate. Moms hurt when their kids are hurt. It’s an age old rule.

When I was 10, Tommy’s age when he was hurt, I fractured my collarbone. You should have seen my mom. She ran out into the street, gathered me up, and cried harder than I ever saw anyone cry. In fact, I didn’t even know I’d broken a bone until I heard my mother cry like that. Do parents hurt for their kids? You bet they do. And, to tell the truth, a lot of parents assume the worst. A lot of parents exaggerate their children’s injuries. But not Helen Farwell.”

d. Valuing the Parents’ Future Loss

Outlining the loss of parents’ hopes and dreams can impinge upon the Jury’s comfort level, if the lawyer veers anywhere near the maudlin. A wiser approach is to stay specific, and then to let the concrete example imply the volume of value it represents. Example:

Detailing the Loss of a Parent’s Hopes and Dreams

“Parents always have hopes and dreams for their kids. Nadine had hopes and dreams for Tiffany. That’s why she abandoned the idea of adoption. She chose life as a single mother instead of life as a single woman. Nadine has lost most of those hopes and dreams.

Some parents hope and dream about experiencing milestones with their children. Like walking a daughter to her first day at school, lending her strength by holding her hand.

In June of the year 2013, there will be a high school graduation at Tomball High School. Some parents will look forward to watching their children walk across the stage.

A few years later, some parents will be hearing these four words, ‘Mom, I’m getting married.’ Later maybe, I’m getting a job.’ ‘I’m joining your church,’ and, yes, eventually, some parents may hear, ‘Mom, you’re going to be a grandmother.’

Some parents go through life working hard, but eventually they slow down. As we approach the other end of life, often we have the same needs as when we came into this world. Just as children get strength from holding a parent’s hand, some parents, as they age, need strength from their children’s hands. Some parents hope to hear words like these to calm their fears: ‘Mom and Dad, you’re getting older now. Come and live with me.’

Some parents will realize their hopes and dreams. Some parents. Not Nadine.”

To Part 3 → Lost Earnings and Capacity, Physical Impairment

Author: Jack McGehee (McGehee ⋆ Chang, Landgraf, Feiler)