Pain and suffering often account for a significant portion of the non-financial damages in a personal injury case. They might even make up the bulk of the compensation you have the right to receive.
Here’s how to prove your pain and suffering.
Hire an Experienced Personal Injury Lawyer
The most important thing to know about proving pain and suffering is that you should not attempt it without a lawyer. It takes the skill and effort of an experienced personal injury lawyer to build a strong case for pain and suffering damages. Without a lawyer’s help, you cannot realistically hope to present a convincing claim for maximum pain and suffering payments.
You should hire a lawyer to make a case for your pain and suffering for three key reasons:
- Proving pain and suffering can be legally complicated, labor-intensive, and time-consuming—the sort of burden you do not need to shoulder while healing from an injury.
- The only viable way to secure maximum pain and suffering damages is to be ready and willing to prove them in court if necessary, a job almost exclusively reserved for experienced trial lawyers.
- The people you must prove your pain and suffering to—judges, juries, defense lawyers, and insurance companies—will take your claim seriously only if you have a lawyer advocating on your behalf.
Do not make the mistake of trying to prove your pain and suffering on your own. It’s virtually always a costly error.
Evidence a Lawyer Might Use to Prove Your Pain and Suffering
To prove the pain and suffering you have endured, the lawyer must collect and present evidence that a court of law will admit. That evidence must establish the nature and extent of your injuries and their negative impact on your physical and emotional wellbeing.
Here are some common forms of evidence a lawyer may deploy in proving your pain and suffering damages.
Medical records relating to your injury
Medical records are admissible in court as proof of the facts they contain, making them especially useful and significant items of evidence to prove your pain and suffering.
Your medical records establish the fundamental facts of your injuries—their nature, cause, treatment plan, and prognosis. They commonly consist of test results, diagnostic scans, physician notes, prescriptions, and reports of medical procedures, among other items.
Your medical records can also constitute direct or indirect proof of the physical pain you endured. For example, they may contain statements about the degree of pain you felt or the prescriptions doctors wrote for pain medication. They may also include descriptions of your injury, allowing a jury to infer the agony you experienced.
Medical records relating to your mental health
As the name suggests, pain and suffering seek to compensate you not just for your physical discomfort but also for your emotional challenges. For that reason, records relating to mental health treatment can also serve as important evidence to prove pain and suffering damages.
Suppose you sought treatment by a psychologist or psychiatrist following your injuries. In that case, your lawyer may collect and use records of that treatment to prove your emotional state and any mental health difficulties you confronted. Common mental health conditions associated with personal injuries include anxiety, depression, and post-traumatic stress disorder (PTSD), all of which a lawyer can prove through medical records.
If you have not yet sought mental health treatment after an injury, a lawyer may encourage you to do so and help connect you with a provider. Working with a therapist or psychiatrist can often help get you back on track after a traumatic accident. It may also help to bolster your case for pain and suffering damages.
Your sworn testimony
Critical though they are, medical records alone cannot paint a complete picture of your pain and suffering. As the victim of a severe accident, only you know your injury’s true impact on your life. That is why your lawyer will likely want to rely at least partly on your sworn testimony about the challenges you have overcome.
Testimony About Your Physical Pain
Pain from an injury can vary substantially from one injury victim to the next. That’s why trying to put the pain you feel into your own words is essential.
Your lawyer may ask you to describe:
- The pain you felt when first injured and immediately afterward;
- Treatments and procedures you have undergone;
- Complications arising from your injury;
- Specific pain-related aspects of an injury, such as pressure on a nerve;
- The pain medications you take or your inability to use certain medications;
- Challenges you face in controlling your pain;
- Specific activities that cause you pain or times of day when you feel pain.
Testimony About Emotional Suffering and Mental Health Challenges
Your account of the emotional difficulties brought about by your injuries can also serve as powerful evidence of your pain and suffering.
Your attorney may work with you to help you explain challenges like:
- Depression
- Anxiety
- Difficulty coping with the loss of independence
- PTSD
- Anger related to your injuries and the accident
These are not easy topics to discuss. But if you can find a way to speak about them, they can assist decision-makers like insurance adjusters and jurors in understanding the true depth of your pain and suffering.
Testimony About Relationship Impacts
Beyond describing your inner experience of pain and suffering, your testimony can also detail the broader impacts of an injury on your life. In many cases, severe injuries can take a profound toll on personal relationships, causing an estrangement between the injured individual and their spouse, family members, or friends.
Your lawyer may ask you to testify about negative changes in your ability to interact, socialize, or be intimate with the people you love. These effects constitute part of the harm compensable through pain and suffering damages.
Testimony About Day-to-Day Life Disruption
Living with an accidental injury can also cause you to miss out on many of the activities of daily life you previously took for granted. You may, for example, no longer be able to participate in hobbies like jogging, fishing, or playing sports with friends. Or you may have missed opportunities, events, and special occasions because your injuries limited your mobility.
An injury can even impair your ability to perform tasks fundamental to living independently or caring for yourself. By describing these injuries, your testimony can illustrate the day-to-day struggles that form another element of your pain and suffering damages.
Sworn Testimony of Family and Friends
Your friends and family members can also offer insight into the pain and suffering you have endured. Experienced personal injury lawyers will often ask those individuals to give their perspectives on your struggles. This testimony can corroborate your statements and provide additional details you may not have mentioned.
Testimony About Your Interpersonal Difficulties
Sometimes, injuries can draw people closer. But they can also push them apart. Your spouse, family, or close friends might testify about changes in your relationships with them and the effect that has had on them and you.
Testimony About How You Have Changed
A lawyer may also ask your loved ones to testify about the changes they have observed in your personality, interests, or day-to-day. Some injuries, like TBIs or spinal cord damage, can cause profound alterations in a person’s personality or outlook on life. Others may cause more subtle changes. Perspectives of those close to you can illustrate an injury’s negative toll.
Testimony About Your Loss of Life Enjoyment
Your loved ones can also testify about your inability to engage in pursuits you once enjoyed. They can describe what those activities once meant to you and the disruption your injury has caused. A lawyer can often use this testimony to drive home to a judge, jury, or insurance company the personal impact of an injury.
Reports and Testimony By Expert Witnesses
Sometimes, it also helps to have a neutral third party provide a perspective about your pain and suffering. A skilled personal injury lawyer may retain an expert witness for this purpose. Expert witnesses are professionals who prepare reports and give testimony about their assessment of aspects of your pain and suffering.
Expert witnesses in proving pain and suffering damages may include:
- Physicians who treat or evaluate your injuries or pain management protocols;
- Mental health professionals who treat or evaluate your emotional condition;
- Occupational therapists who assess your ability to live independently;
Expert witnesses can discuss your specific circumstances and the typical experience of individuals who have suffered injuries like yours. By offering this comparison, their testimony can illustrate the nature and degree of your past and current pain and suffering. They can also frequently provide opinions about the future pain and suffering you will likely endure.
How a Lawyer Puts a Value on Your Pain and Suffering?
Having proved that you endured pain and suffering, your lawyer will typically demand that the at-fault party (and its insurance company) pay you a specific amount as compensation. Various methods exist for translating pain and suffering into dollars and cents. Here are three common ways of putting a value on your pain and suffering.
Multipliers
One way of coming up with a value for pain and suffering is by multiplying your financial damages by a number. This multiplier, in effect, rates the severity of your pain and suffering. The more agony you have experienced, the higher the number.
Multipliers are easy to use but only work if you incur significant financial damages. If an injury caused relatively few expenses but extreme discomfort and difficulty, the multiplier method may not accurately value your pain and suffering.
Per Diems
Another standard method of valuing pain and suffering is to assign a dollar value to the daily (per diem) impact of your injuries and multiply that figure by the expected duration of your struggles.
The challenge of using per diems is assigning an accurate value to your daily struggles and their duration. This method may not work well, for example, if you face a likelihood of your pain and suffering worsening in the future.
Trusting the Jury
If your case goes to trial, determining your pain and suffering will typically fall to the jury. In that case, jurors must examine the evidence your lawyer presents and use their best judgment to decide the appropriate compensation for your pain and suffering.
Virtually every personal injury case holds the potential to end up in a trial. That is why it is crucial to hire an experienced lawyer to prove your pain and suffering. The stronger the case your lawyer makes to the jury, the higher the amount the jury may award for pain and suffering.
Contact a Skilled Personal Injury Lawyer Today
No matter what type of injury you sustained, the law entitles you to receive compensation for your pain and suffering. But proving the nature and value of your pain and suffering is not straightforward. The most reliable way to obtain maximum payment for pain and suffering is to hire an experienced personal injury attorney to represent you.
Do not make the costly mistake of trying to shoulder the burden of proving pain and suffering alone. Instead, contact an experienced personal injury attorney who can investigate your case, answer your questions, evaluate your challenges, and present the evidence of your pain and suffering in the most convincing manner possible.
Jason Hutzler
Jason Hutzler is the founding partner of Phoenix personal injury law firm Hutzler Law, and represents individuals throughout Arizona. His practice is primarily dedicated to personal injury and car accident claims, leveraging his deep expertise as a former insurance adjustor to navigate the complexities of insurance negotiations.