Vegas Personal Injury Law Blog

Pain and Suffering Damages are the effects on a person’s life as a result of physical and emotional injuries.  They include the loss of enjoyment of life and pain and discomfort doing daily activities such as cleaning the house, going out with the family and raising children. Placing a value on pain and suffering resulting from a motor vehicle accident is a is a difficult task for any mediator, arbitrator or juror involved with the personal injury case.  There’s no one to scientific formula, chart or table that attorneys and insurance companies can look to you determine the value of a person’s physical and emotuional pain and suffering as the result of an accident.

I was surfing the Internet recently when I came across a web site that claims to evaluate  personal injury claims.  I typed in a medical bills of $5,498.00, vehicle repair costs of $1,000.00, rental car expenses of $250 and wage loss of $500.  The program gave me an estimated claim value of between $13,006.95 to  $26,243.41.  Based on my 25 years of experience in dealing with personal injury cases, I find this to be a simplistic and unrealistic evaluation, especially in situations where a person is not represented by an attorney. Don’t rely on this type of information to evaluate the value of your auto accident case.

Oftentimes, the victim that suffers the most as a result of an auto accident does not receive adequate compensation for pain and suffering because that victim has inadequate documentation, incomplete documentation, or lacks good pain and suffering witnesses. Studies have shown that juries evaluate pain-and-suffering  higher in urban settings than juries in  rural settings.

There are many factors that need to be considered in determining the value of pain and suffering.  Juries (and even insurance companies) look to the credibility of the victim as a witness.  Arbitrators, mediators, jurors and insurance companies also look to see if a person’s actions following an accident are consistent with someone who is in pain.  They look to see how the injured parties everyday life is changed as a result of an accident.  Sometimes extraneous factors such as pain tolerance, occupation and marital status are sympathy factors that can increase the value of a personal injury claim.  The skill and experience of the attorney representing the injured party can influence the evaluation of pain and suffering damages.

Juries often look to, and are swayed by, factors such as the age.  Older people probably will suffer more from auto  accident injuries because their body  cannot recuperate as well younger people.  Juries often have the mind set  that  that younger people should heal more quickly than older people.  Some juries  think that a person suffers more because he continues to care for his children while healing for an injury.  One of the most of the important factors that jurors consider in evaluating pain-and-suffering is the honesty of the injured party.  Sometimes the injured party can be too prepared and too confident on the stand.  

People that have an aggravation of a pre-existing injuries will usually receive less for pain and suffering then people with new injuries.  This has a lot to do with insurance company evaluation.  Their position is that aggravation cases are easy to defend. However, in litigation it should be the attorney’s job to you convince the jury that the old injury was aggravated and that the than aggravation of a pre-existing condition requires more medical treatment and results in more residual pain and suffering than an original injury.

More medical treatment does not necessarily mean more money for a pain and suffering.  However, the total amount of medical bills is definitely one factor that is considered.  Running up medical bills unnecessarily is looked at with a fair degree of suspicion.  Stretching out treatment on a minor injury can be interpreted as greed on the part of the injured party, and this is certainly the position that will be taken by the insurance company.  Jurors have a tendency to award higher damages for pain-and-suffering on accidents that involve major property damage as opposed to minor property damage.

I was in a settlement conference  with  District Court Judge Timothy Williams on a wrongful death case.  The judge told my clients that juries are very unpredictable.  He gave the example of two  separate  cases that went to trial recently involving similar injuries with meniscus surgery following a knee injury.  Two different juries came back with divergent evaluations of medical bills and pain and suffering.  In one case the jurors awarded a reasonable amount in a trial where evidentiary issues should have drastically reduced damages, and in the second case the jurors’ award reduced the actual medical expenses drastically and awarded the injured party nothing for pain and suffering. 

Therefore, all we can say about the value of pain and suffering on an auto  accident case is that there is no definite formula.  Generally, the better pain and suffering is documented, the higher the award for pain and suffering.  The concept that pain and suffering is worth some multiple of the medical expenses is not a standard of evaluation that is uniformly applied.

As you can see documentation is the key to obtaining a reasonable settlement on the personal-injury auto case.

The right to jury trial arises by statute.  In most jurisdictions, where the value in controversy exceeds a certain dollar amount, the right to jury trial will be preserved.  Most personal injury auto accident cases that result in jury trials have some weakness.  In some cases there is a delay in obtaining medical treatment after an accident.  In some cases there is a delay in the development of symptom after an accident.  In some cases pre-existing conditions are exacerbated or aggravated and there is no new injury.  In other cases a person complains a pain without any positive diagnostic findings.  Many times we see severe injuries with very minor property damage to the involved vehicles.  Many of these difficult cases are tried and result in defense verdicts.  

Sometimes difficult cases go to trial with a surprisingly good outcome. 

Insurance companies will spend money to litigate these cases, because they know some personal injury attorneys do not want to incur the expenses to take them to trial.  Many of these difficult cases settle for a nominal amount before trial.  

Some personal injury lawyers will try these difficult cases.  It is difficult for personal injury lawyers to decide which personal injury cases that really should be tried.  

Sometimes these difficult cases go to trial, and the jury will simply not believe the plaintiff was injured.  Oftentimes, when there is a plaintiff’s verdict, the jury will cut damages for medical bills, wage loss and/or pain and suffering.  If a plaintiff goes to trial and the result is a defense verdict the plaintiff will, undoubtedly, be on the hook for attorney’s fees and costs incurred by the insurance company in defending the case.  This can result in a judgment against a personal-injury victim of tens of thousands of dollars. If there is no offer made to settle a claim, and the plaintiff  is judgment-proof, any downside financial risk to the plaintiff can be extinguished in bankruptcy.   

Insurance companies always like jury trials over bench trials (trials without a jury).   They know that their odds of a defense verdict are greater with a jury than with a bench trial.  Once one side requests a jury, the opposing side generally cannot change the case back to a bench trial.

Can a jury really be impartial?  There are certain rules that control jury conduct to keep jurors impartial.  In a jury trial, the judge instructs jurors prohibiting them from conducting any outside research while they serve on the panel.  They are prohibited from discussing their case amongst themselves prior to the close of evidence and  the start of deliberations.  They are instructed to set aside any prejudice or preconceived notions that could affect the outcome of their decision.  

Despite these judicial warnings juror conduct may not be perfect.  Jurors are not supposed to communicate with others about the case.  In this modern technological age the internet can be accessed by a cell phone.   After they leave the courtroom, despite the warnings many will seek access to internet sources and attempt to dig deeper into the case to get  information to share with their fellow jurors.  Recently on the news a juror in a federal drug case admitted to the judge and he was doing research on the case on the internet.  It was also determined that many other jurors were doing the same thing.  This resulted in a mistrial.  Jurors are not allowed to do their own independent investigations of the case.   They are limited  in their decision making by only  the evidence that is presented during the trial.  They can’t be exposed to any evidence which is excluded by the judge, and they can’t have  access to any information that can create bias or prejudice toward any party.  Some jurors just do not follow these instructions.

The legal system provides for “voir dire.”  This is a process by which prospective jurors are questioned about their backgrounds and potential biases and prejudices before being chosen to set on a jury.  Personal injury attorneys want jurors who have been involved in car accidents or have had a close family member who has been has been involved in an injury producing not-at- fault car accident.  However, it is likely that these jurors will not be selected to serve, because they will be preempted by the defense. 

Juries must deal with complex legal issues during their deliberations. They are instructed on the legal issue of proximate cause.  This legal concept is confusing to jurors.  Lawyers spend many hours in law school studying this legal concept.  Proximate cause inquires into the sufficiency of the  connection between the defendant’s action in the plaintiff’s injuries.  When there is an intervening event between defendant’s negligence and plaintiff’s injuries, the determination of whether defendant’s conduct was a proximate cause of plaintiff injuries turns on whether the intervening event was a foreseeable consequence of the defendant’s negligence.  Were there other factors that contributed to the injury?  Was there enough force associated with the accident to cause an injury potential?  Was the defendant’s negligence continuous up to the time of the injury?  How much time elapsed from the negligent act to the injury.  Expert witnesses used by both sides in auto accident cases often express opinions concerning causation and proximate cause.  It is not unusual in a jury trial to have an expert’s on both sides state diametrically opposed opinions. It is easy to see how jurors can become overwhelmed by all this and loose perspective concerning their job as jurors.

So not every act of negligence combined with the development of injury will result in an plaintiff’s verdict.  The defense will always take the position  that the injuries were not caused by the subject accident.  They will center their defense on delayed symptomatology,  pre-existing conditions and lack of injury causing potential.

One of the recent jury reforms is to allow jurors to asked witnesses questions during the trial.  This procedure is slowly gaining acceptance throughout our country.  In most cases, the jurors to write down their questions and the judge determines the admissibility of the question.  The judge will read the question to both counsel and allow them to object.  The jury and witnesses are removed from the courtroom during this process.  

Juror comprehension is strained by lengthy cases and complex evidence and intricate law.  Jurors in these cases can become dissatisfied with their participation and look for an easy decision based upon an insignificant event that occurred at trial that was not commented upon by either side.  

A jury’s decision making ability is not always entirely accurate. Once their verdict is entered, the legal system limits procedures to query jurors to determine if they correctly applied the jury instructions to the evidence and honestly deliberated on the case.  See, e.g., NRS 50.065. The general rule is that we cannot inquire into their decision making process.  Therefore, the decision to take an auto accident case to trial is not easy one.  Many juror factors come into play.  The plaintiffs need to know what they are getting into with a jury trial, so that they can make an intelligent and informed decision about any settlement offer made on their case.