In personal injury cases, damage awards can vary widely even among plaintiffs who have very similar injuries. Two main reasons for this are that damages for pain and suffering can be very personal in nature, and juries view damages for pain and suffering more subjectively than objectively.
If you get into an accident, how can you convince the insurance adjuster, the defense attorney, and the jury that you really were hurt, and that your injury was as bad as you say it was? Your ability to present a winning claim for pain and suffering will often depend on the following factors:
Let’s look at these factors in a little more detail.
Insurance adjusters, defense attorneys, and juries put a high value on consistency. You must be consistent in your statements about how the accident happened, and you certainly must be consistent in your complaints of pain.
Inconsistency in complaints can be a sign that the injured person is making something up. If, for example, someone with a back injury tells Doctor A that she is having pain down the left leg, then tells Doctor B that the pain is down the right leg, then tells physical therapist C that she has never had pain down either leg, that person is going to have a hard time convincing anyone that she is having legitimate pain anywhere.
Consistency is also a sign of credibility. Because modern medicine has not yet developed any real tests to objectively determine if someone is having pain, doctors (and juries) must rely on the patient’s word. If a jury doesn’t think that the plaintiff is credible, the jury is not going to believe the plaintiff’s testimony about how the injury occurred, and is certainly not going to believe the plaintiff’s testimony about pain and suffering. Some factors that affect a jury’s thinking about a plaintiff’s credibility are the following:
Likeability is very personal. If you don’t like someone, you are probably not going to do that person any favors. Similarly, if jurors don’t like someone who is sitting before them asking for money (i.e., a plaintiff in a personal injury case), they are not going to give that person much (if any) money. That's not the law, it's human nature. A plaintiff who is a likeable person and a good witness is going to do a lot better at trial than an unpleasant person would.
When a good personal injury lawyer has a client who has a good case, but the client is harsh, abrupt, and generally not too likeable, the lawyer will spend a lot of time working with the client to prepare him/her for deposition and trial. Good lawyers will even bluntly tell such a client that they don’t come off well to strangers, and that they are going to have to work on their personalities to improve their chances of success with the defense attorney and the jury.
You need to give the jury a reason to give you compensation. If you have pain, you need to tell the jurors that. Strong, silent, stoic types don’t always get what they should for pain and suffering because they never conveyed to the jury how bad their pain was. If you are in pain, you have to be able to explain it to the jury. You need to tell the jury how often you are in pain, and how the pain has affected your life and your ability to work.
Your doctors must be on your side. If you and your doctors are on different wavelengths, you are going to have trouble proving your case. The reason for this is that pain and suffering damages that a jury awards at trial must match the severity of the actual injury, as explained by your doctor. If, for example, someone broke a toe, and the jury somehow awarded $500,000 for pain and suffering, the judge is going to substantially reduce that award.
But the severity of the actual injury is solely based on the doctor’s diagnosis, and only the doctor is permitted to testify at trial about a diagnosis. So, if your doctor thinks that your injury is a lot less severe than what you think, the jury is only going to hear your doctor’s diagnosis, and is going to base its pain and suffering award on that diagnosis.
So, if your doctor isn’t on your side or doesn’t think that your injury is that bad, you are likely going to need to find another doctor. However, while there is nothing wrong with having a second opinion, too many “second opinions” will lead to charges of doctor shopping. If the jury thinks that you were doctor shopping for a better diagnosis, it is going to think that your injury wasn’t too bad, and your pain and suffering award will reflect that.