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Geoff Trachtenberg
Geoff Trachtenberg
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Pain and Suffering: Getting the Jury to "Feel Your Pain" in a Personal Injury Matter

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Pain and suffering. Two “legal words” that literally roll off your tongue. Words that are easy to say, but are hard to live with, especially when you are injured or disfigured by someone else’s carelessness.

One of the jobs of trial attorneys is to convey a client’s pain and suffering to a jury, and it’s not an easy thing to do. In fact, it is one of the hardest things trial lawyers do, and it is something that cannot be done without the client’s assistance.

As a starting point, it is important to note that the two words — pain and suffering — oversimplify what a jury is told to consider in their deliberations. In Arizona, for example, the actual instruction juries almost always get from the Judge is to consider the “nature, extent, and duration of the injury” and the “pain, discomfort, suffering, disability, disfigurement, and anxiety already experienced, and reasonably probable to be experienced in the future as a result of the injury.” Juries are also often instructed to consider the “loss of enjoyment of life, that is, the participation in life’s activities to the quality and extent normally enjoyed before the injury.”

Nevertheless, aside from being a colorful collection of words, these standard jury instructions do not tell the jury anything about the personal experience an injured person has as a result of their injuries. To make matters worse, it’s a cynical world and civil suits are about money — or, put another way, “just compensation” for injuries caused by someone else. How does an attorney convey to a jury the personal experience of a client so that a jury can fairly determine “just compensation” in a meaningful way?

There’s no secret answer, it just requires effective “storytelling,” and there’s no “one way tell a story.” The jury must connect with the injured person. Likewise, while most good stories have “a beginning, a middle and an end,” just having those basic features does not make a story compelling (i.e., “just the facts” is not enough). It’s the same with educating a jury about a client’s injuries. Every case is different and every story needs a “hook.”

A good share of this burden falls on the client and, as a client, this task is especially difficult if they experience pain but “look healthy.” Although juries know that they cannot literally “see pain,” connecting with the jury will allow them to effectively “see pain” by having them “feel it,” if only through sincere and compelling storytelling.

By the way, it should go without saying that when I refer to “storytelling,” I mean it in the purest and most genuine sense. Whether it is an anecdote or something more, storytelling is the way humans connect and relate to one and other. Storytelling gives a face to otherwise blurry shapes.

For example, telling you I feel constant pain in my back is one thing, telling you how the chronic pain has effected my financial, emotional and spiritual well-being is quite another. Maybe I might tell the jury about nights spent in on the floor, in tears, because I cannot get comfortable in bed. Maybe they will hear that the pain makes me feel like a failure because I cannot be the kind of father, provider, husband, etc., that I was before being hurt. My point, of course, is to put a face on the pain so that a jury can at least look through the window, past the pure facts about MRI findings and disc protrusions, and see the human side of “pain and suffering.”