Why You Need an Experienced Personal Injury Attorney to Negotiate Your Claim for Pain and Suffering
By David Carnes, Staff Writer
In a colloquial sense, everyone knows what pain and suffering means. Nevertheless, in a personal injury lawsuit, the term “pain and suffering” has a specific meaning that could to a large extent determine how large a damages award (or settlement offer) you will receive. A claim for pain and suffering is in some ways far more problematic than other elements of a personal injury damages claim such as medical expenses.
What is “Pain and Suffering”?
In a personal injury lawsuit, pain and suffering refers to your subjective suffering as a result of the defendant’s negligence. There are two types – physical and mental. Physical pain and suffering refers to your physical pain. Mental pain and suffering refers to the psychological distress you might suffer if, for example, your injuries prevented you from engaging in sexual relations with your spouse or you had to face the fact that you would never be able to walk again.
The subjective nature of pain and suffering can make it quite difficult to attach a number to it. If you can prove a physical injury, it can be assumed that you experienced a certain amount of physical and mental pain and suffering. Proving that your pain and suffering is worth $100,000 instead of $50,000 is another matter, however.
How is Pain and Suffering Proven?
Pain and suffering can be proven using a variety of indicators, including:
- Your testimony
- The severity of your injuries
- The length of treatment and disability
- The type of injuries you suffered
- Testimony from your family and friends
- Testimony from a mental health professional if you suffered from maladies such as depression or anxiety
- Testimony from expert medical witnesses
- A personal journal in which you record your suffering in detail
All of this evidence must be carefully prepared to ensure that it complies with the complex rules of evidence in your state. Even if your case is settled out of court, the other side will tend to discount inadmissible evidence because you wouldn’t be able to use it against them in your lawsuit. It is the fear of losing a personal injury lawsuit, not compassion, that motivates insurance companies to settle with you privately.
How is Pain and Suffering Calculated?
Plaintiffs’ attorneys usually calculate pain and suffering in one of two ways:
- As a multiple of the sum of your medical expenses and lost wages. This multiple typically varies from one to five, depending on the severity of your injuries.
- As a “per day” figure that runs from the date of your accident until the date of your full recovery.
Insurance companies often calculate pain and suffering with the assistance of a (considerably stingier) computer program that takes into account many different factors.
What You Need at the Negotiating Table
The vast majority of personal injury claims are settled out of court even after a lawsuit is filed. The parties are entitled to reach a binding settlement at any time before a final courtroom verdict is announced. This means that in all likelihood, to obtain adequate compensation for your pain and suffering, you will have to negotiate with an experienced insurance company claims adjustor or lawyer. These people are professional negotiators who have handled many claims similar to yours. Fortunately, an experienced personal injury lawyer can say the same.
At the negotiating table, you will need to be able to see your case objectively (even though you will be negotiating as a partisan), a feat that is nearly impossible if you are the victim. Your lawyer, however, is likely to be much more able to take an objective look at your case. Since, as it is said, “All bargaining takes place in the shadow if the law”, you will need to be able to consider the legal implications of your claim in order to avoid settling for much less than your claim is worth.
Finally, you will need a high level of negotiating skills so that you can properly price an initial offer, for example, or realize when to call the other party’s bluff by filing a lawsuit. It is the rare plaintiff who possesses all of these abilities without the need for a skilled and experienced personal injury lawyer.