Why Pain and Suffering Are Difficult to Measure

Pain and suffering in personal injury cases are probably the hardest damages to calculate because there are so many moving parts to the calculation. Juries and courts have to take many things into account, and those things don't have cold, hard evidence to back them up. The factors involved in these calculations also rely on human behavior and assumptions about lived experience, and if juries don't like or don't believe one of those factors, that can result in an award that's lower than you'd hoped, if you get anything at all.

Persuading courts and juries that your experiences after an injury constitute pain and suffering isn't easy. It is always safer to go after damages for pain and suffering when you have an excellent personal injury lawyer leading the case.

What Are Pain and Suffering in Injury Cases?

Pain and suffering are the subjective pain and emotional component of personal injury. When you go through an accident or other traumatic event, even if it's one that doesn't leave a lot of physical scars, you can end up with emotional and mental scars, plus physical pain from internal injuries. These can have frustrating and demoralizing effects on your life.

You may be able to seek help from a doctor for the physical pain and a psychologist for the emotional pain, of course. However, those appointments will cost you. Plus, emotional and chronic pain can last a very long time, making it harder for you to live the life you wanted to have.

Examples of pain and suffering include depression, post-traumatic stress disorder, chronic joint or muscle pain (e.g., from whiplash), loss of enjoyment, loss of amenities (e.g., being unable to lift anything due to a muscular injury from an accident) and mental anguish. These do not have to correlate with a visible physical injury to be real. And that's part of the problem when you're trying to convince a court that you deserve damages for pain and suffering.

Why These Are So Difficult to Measure

All of the conditions that count as pain and suffering are non-measurable in any sort of objective way. There's no way to show the court irrefutable proof that you're suffering.

They're Subjective and Unquantifiable

How painful is a broken arm? Is moving around on crutches painful or tolerable? What about your mental state after a serious accident or injury? The truth is that no two injury victims will have the same experience.

All of the descriptions of what you're going through rely on your perception. In pain and suffering, you are the only one who knows how much something hurts or how much something has affected you. Others may have had similar experiences and be able to envision what you're going through, but they can't definitively see or feel what you're going through. That makes pain and suffering hard, if not impossible, to quantify for damages.

They Can't Be Documented Easily

Because pain and suffering can't be quantified, they can't really be documented. Yes, someone could send a private investigator to trail you and see if you were really unable to do certain things that you said you couldn't do as a result of the accident. But that's not always what happens in personal injury cases, despite what stories from past cases may have led you to believe. And mental anguish and other emotional effects aren't always consistent. You may find that you're fine when you stay at home, but the minute you go outside, your fear from the traumatic event comes roaring back. How do you document an internal feeling like that?

They Change From Case to Case

Pain and suffering also change from case to case and from person to person. You may have post-traumatic stress from a car accident, but the jury evaluating your claims may have been in similar accidents themselves that didn't result in any sort of stress. They may not believe that the accident affected you because it didn't affect them. Or, you may not have as much trauma as they expect, given the circumstances of the accident. That might make them think you're not having that much trouble.

They Often Depend on Plaintiff Credibility

Speaking of jury experience, your credibility also affects how easy it is to measure and decide on damages. If, for whatever reason, the jury doesn't think you're credible, they may be less amenable to considering damages and not put a lot of effort into deciding what you should get. And this is a huge reason why you really want a good lawyer working on your case. That attorney will know how to present your case in a manner that shows the jury that you're truly having these problems as a result of the injury.

They Don't Have a Standard Formula for Calculating Value

Regardless of how credible you seem, courts just don't have one standard formula for calculating these things. There are a couple of methods that courts use, but the results can still vary widely. One method is the per diem method, in which courts use one rate multiplied by a number of days to give you an award. The rate may be based on your pay, if you work, or on some other factor, such as the severity of your injury or the effects the injury had.

The other method is the multiplier method, in which the quantifiable damages (e.g., medical bills) are multiplied by a factor that ranges from about 1.5 to 5. This method can get you a substantially higher award, but again, it depends on the factor the court chooses to use in the multiplication. An experienced personal injury law firm like Folkman Law can give you some idea of what to expect if the court chooses to use a specific calculation method. And in the event that the calculated amount does not accurately reflect the true breadth of your pain and suffering, your legal team will fight for access to full compensation on your behalf.