One of the most common questions asked by clients is “how much will I be compensated for my pain and suffering?”
The answer I, and most lawyers, give is that “it depends.” It depends on many factors, such as the objective injuries you can prove, liability of the defendant(s), and the hard amounts of your medical treatment bills. But mostly there is no way for us to predict what a jury of one’s peers will do to compensate you for pain and suffering in an injury lawsuit.
When you go to trial in Illinois before a jury, your lawyer must draft jury instructions for the judge to read after the closing arguments have been made. Each party's lawyer submits his or her own versions, and after a conference with the judge, a final version is read to the jury right before they begin deliberations.
All jury instructions are codified and published by the Illinois Supreme Court, and include case law, notes on use, and other helpful explanations.
Most experienced attorneys often consult jury instructions when they take a case, since they need a roadmap of what they must prove before they even begin.
Illinois Pattern Jury Instruction (I.P.I.) 30.05 specifies that Pain and Suffering are compensable damages for both past pain and suffering and pain and suffering expected to be suffered in the future. It requires that this statement — “the pain and suffering experienced (and reasonably certain to be experienced in the future) as a result of the injuries” — is to be inserted into the “main” damage instruction I.P.I 30.01.
All this sounds well and good, but it is a lot more complex than many people realize.
Many clients believe that just them telling the jury their story and how much pain they were in after, say, a car crash is enough. In some cases, it might be. But not so fast.
Jurors are more skeptical than ever before. Jurors also are often of a generation that expects demonstrative evidence or documentation of things. The millennials are truly the “show me” generation.
One way to prove pain and suffering is to have the client (plaintiff) testify about his or her pain coupled with at least one of his or her treating physicians to offer the opinion that this type of injury is expected to be painful.
A plaintiff who was hit by a car and sustained a fractured ankle requiring surgery probably does not have to do much to convince a jury that this injury would be painful both after the incident and in the future. However, a plaintiff who sustained an “invisible” injury like “whiplash” will need solid medical testimony to support pain and suffering damages.
Demonstrative evidence is a fantastic method of helping to prove pain and suffering. For example, a doctor who uses a motion x-ray machine would be able to point to a computer image where the plaintiff’s neck had “made straight” by the whiplash force of the crash. This, coupled with the physician’s other testimony as well as the plaintiff’s recitation of pain she experienced, would convince a jury to award money for this element of damages.
Again, a doctor’s testimony is very helpful in that the doctor can testify that he or she is reasonably certain medically that the patient with this type of injury would experience pain in the past (and may experience pain in the future, if warranted).
A skilled personal injury attorney will understand that a multitude of factors must be considered when asking for specific elements of damages. Ask too little and you are not taken seriously. Too much and you are tuned out. The lawyer must read the case, the jury, the client’s injury, and the evidence to decide what the jury will accept as reasonable. Part of this feeling out process begins in voir dire, the questioning that occurs as the jury is being interviewed and selected.
Ultimately, if the attorney does this analysis correctly, the jury will award close to, or sometimes even more than, what is asked for in closing argument.
Takeaways on Pain and Suffering:
• Illinois follows pattern jury instructions that try to explain to the members of the jury what rules it must follow and for what elements of damage it can award money
• Pain and suffering is an amorphous phrase but specific steps can bolster an award for damages for pain and suffering
• Jurors are skeptical — demonstrative evidence is very helpful to prove “non-economic” damages
As in all cases involving injury and potential liability, immediately get medical treatment, report any car crash to police and your own insurance company, and contact a personal injury lawyer.
If you've been in an accident and have questions, contact Chicago personal injury attorney Stephen L. Hoffman for a free consultation at (773) 944-9737. Stephen has nearly 30 years of legal experience and has collected millions of dollars for his clients. He is listed as a SuperLawyer, has a 10.0 rating on Avvo, and is BBB A+ accredited. He is also an Executive Level Member of the Lincoln Square Ravenswood Chamber of Commerce.
Stephen handles personal injury and workers' compensation claims on a contingency fee basis, which means you don’t pay anything upfront and he only gets paid if you do. Don’t wait another day, contact Stephen now.
