How to Prove Pain

In a personal injury lawsuit, a plaintiff can collect damages on pain and suffering that they have experienced because of the negligence of another. But how does one put a price tag on pain? And how do you prove it? Charles Flaxman, a lawyer at Flaxman Law Group, explains perhaps the trickiest aspect of personal injury law.

There really is no correct answer to this question. Doctors only know how much pain a patient is in based on what they tell them. The common test for a doctor is simply to ask the patient to give them a level of one to 10.

While medical bills and loss of job are quite hard to monetize and prove, physical pain is even more difficult to quantify. One could suffer whiplash and truly be in excruciating amounts of pain so bad they cannot even sleep at night. Another person might suffer whiplash and just have some pain when they turn their neck fast. How do you know? That is really where the marketing and sales comes in. There is no right and wrong and it is not easy to quantify pain.

To make matter’s even more complicated, in addition to physical pain, there is also mental pain and suffering. If a person loses a loved one, he is not directly injured. But he certainly is seriously hurt. And because of that, he can sue strictly for his mental pain and anguish. Every case is different and there is no right answer. In the end, the jury decides what you deserve and they are the ones who are right, which is why it is so important how you present your case.

The story I like to give is to compare it to baseball: The batter says it’s a ball and the pitcher says it’s a strike. But it’s a strike or a ball when the umpire says it’s a ball or a strike, and that is what decides it. Similarly, the jury decides what you deserve and that is what you get. It does not matter what you feel is just. There is no clear right or wrong. It’s what you can sell. It’s marketing, just like an election. You are trying to win the hearts and minds of the jury, except instead of trying to win their vote, you are trying to win their sympathy. So instead of saying my candidate has a track record of cutting taxes, you put up X-rays, have economists and doctors testify and try to bring all the evidence you can to win the jury’s hearts and minds until they see it your way.