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Help the jury understand pain and suffering: an award of economic damages is not enough to make your client whole. Jurors must provide compensation for human losses as well.

Article Excerpt
From misguided people in high places to misinformed people in low places, from gigantic billboards to small-print media, and from corporate boardrooms to barber shops and salons, antiplaintiff messages are everywhere. Jurors are inundated with propaganda that bemoans malingering plaintiffs and greedy lawyers seeking windfall awards. Small wonder, then, that adequate awards for pain and suffering are as rare as punitive awards--and that during jury selection, potential jurors sometimes say things like this:

"Life is hard. Pain, suffering, and mental anguish are a part of it."

"She doesn't look injured."

"He has only 10 percent whole-body impairment."

"Money won't make the pain go away or even soothe it."

"Lawsuits don't heal patients."

"If you can't measure it, you can't price it."

"People always look to blame others for their own mistakes."

Jurors have been conditioned to hold a miserly view of human-loss claims--including pain, disfigurement, disability, suffering, and loss of enjoyment of life--and many consider them and punitive damages claims repugnant. Health care professionals, who see noncompensable pain and suffering every day, believe that pain-and-suffering awards against them are punitive--which validates this perception for jurors.

Our job as trial lawyers is to decondition jurors, to make them recognize our injured clients' pain, and thereby to obtain fair damages awards. We must ensure that jurors understand that the purpose of a pain-and-suffering award is to provide the plaintiff with full compensation for the injury, not to punish the defendant. This is a difficult task, but it can be easier if you ask yourself a few key questions and raise them during jury selection or closing argument:

* How can jurors be trusted to make life-and-death decisions in capital cases--but not trusted to make judgments about appropriate awards for pain and suffering?

* Why is intense pain and the fear of prolonged suffering the most frequently cited reason for requests to terminate life?

* How can jurors be trusted to comprehend technical and scientific evidence in antitrust, securities, patent, or products liability litigation--yet not trusted to understand the difference between awards that compensate plaintiffs for loss and awards that punish defendants for misconduct?

During the 200 years before tort "reform," jurors knew the difference between compensatory and punitive damages....

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