As a Florida personal injury attorney, one of the most frustrating parts of my job, in addition to the fact that no amount of money will take away my clients’ pain, is that communicating the extent of their pain and suffering is challenging, either during mediation or trial.
You Have To Prove Your Pain & Suffering
The first thing that an injured person always needs to remember is that the plaintiff has the burden of proving his case, which includes compelling proof of both liability (which is fault or who caused the accident) and damages. Pain and suffering is one component of available damages in an injury case. (Potential damages include: past and future medical expenses, past and future lost wages, and pain and suffering.) But the extent and wide-reaching impact of pain and suffering on an injury victim’s life is difficult to portray. Part of the problem lies in the shortcoming of words alone, particularly during the short time on the witness stand. Testifying is over before you know it. I learn my clients’ stories over an extended period of time, typically during a series of ongoing, lengthy conversations, starting with the initial consultation (my initial consultations typically last 2 hours or more), and continuing through ongoing conversations throughout the representation related to my clients’ pain and medical treatment.
When You Need Evidence Proving Your Damages
During the lawsuit, I must help my client communicate the extent of his or her pain and suffering during various phases of the lawsuit, including depositions, mediations, and trials. Personal injury lawyers typically prove pain and suffering damages through evidence, which can include: verbal testimony from witnesses including the injured person, his family, friends or acquaintances (including “before and after” witnesses,) medical evidence in the form of medical records, and testimony by experts and treating physicians, together with photos and videos.
How You Can Best Prove The Impact Your Pain Has Had On Your Life
As far as testimony is concerned, my firm belief is that details tell stories far better than more generalized statements. For example, saying “I’m in constant pain and my life will never be the same” might be a good introduction, but is much more powerful if followed by extremely detailed questions and answers along the lines of “I can no longer put on my shoes without assistance, I can’t go grocery shopping anymore, I can’t cook dinner for my husband anymore, I used to run 5 days per week but now can’t walk more than a short time without pain, etc.”
You WILL Forget
Unfortunately, one of the problems with telling a detailed story, and not omitting relevant facts, is memory. Memories fade, and that includes memories of exactly how pain and injury has impacted your life. One year later, you might only remember that you were hurting a lot and often. But that’s not detailed enough to convince an insurance defense attorney or jury. Therefore, it is critically important that an injured victim, particularly in any serious or catastrophic injury case, keep a detailed pain log. The log might include basics of treatments and doctor visits, their results, and pain measurements. The person should also record all of the ways that the injury has limited their daily activities, and affected their spouses if there are grounds for a loss of consortium claim. For example, an injured person might keep a log indicating when she went to the doctor, what treatment she received, and when she attended physical therapy. At home, she might keep a log each and every time she takes a pain pill, or uses a tens unit, or receives massage or any other treatment for pain. She might also record whenever she can’t do something that she used to do. Or when she has pain doing those activities.
Written Pain Logs Will Save The Day
In your pain and treatment log, you should record the date, time, duration of the pain, and treatment utilized. You should also note the dates, times and details of anything that you can no longer do as a result of the accident, including pain level on a scale of one to ten. This is to remind yourself later regarding all of the limitations in your life created by the injury. Although you probably believe that you will remember everything, chances are high that you will forget important details. Serious injury cases can span anywhere from one to a few years, depending on how hotly contested. Accordingly, I cannot overstate the importance of keeping this type of pain and treatment log to help your attorney maximize the amount of your personal injury settlement or verdict.
Sample Pain Log Entries
1/27/2014. Pain level: 8/10. Time: 9:00 p.m.-11:00 p.m. Used tens unit. Could not sleep well.
1/29/2014. Pain level: 7/10. Time: 8:00 a.m. Took Oxycodone to help with pain.
2/1/2014. Pain level: 6/10. Time: 3 p.m. Received epidural injection.
2/2/2014. Pain level: 7/10. Time 8 p.m. Took oxycodone, no relief from epidural injection, unable to go to grocery store with my husband because pain too intense. Just want to lie down. Also needed assistance from my husband to put on my pants and tie my shoes.
2/4/2014. Pain level: 10/10. Time 9 p.m. After a long day of work, pain so bad I can hardly stand it. Muscle spasms making pain worse than normal. Planning to use tens unit and take pain pills.
For someone else, let’s say a formerly active runner whose injuries impacted her ability to stay active (despite previous levels of high activity), she might write:
2/5/2014. Pain level: 6/10. Haven’t been able to run since accident, a few days ago tried riding bike and pain level increased right away, so cannot bike either. Tried going for a walk with my family instead and have been much more sore for several days as a result. Feeling terrible that I cannot run, bike or even go on a long walk without pain.
For someone else, let’s say someone whose injuries impacted his ability to do his job (hypothetical truck driver), he might write:
2/6/2014. Today could not press clutch on my vehicle when stopped at a light. Had to modify the way I was driving and felt unsafe. Wondering if I can find someone to drive for me in my business.
Perfection Not Required
The primary purpose of written pain logs is to refresh your memory before or during trial. So you do not have to be perfect or record every event. In a serious or permanent injury case, more is better. But just try to record as many details as you can as often as you can. I tell my clients to purchase a three ring notebook to keep handy. Then just quickly note your experiences whenever possible. If you forget for a few days, don’t worry. Just start again.
“Day In The Life” Videos Even More Compelling In Certain Cases
In addition to the written log notes, videos can tell a compelling pain story. “Day in the life” videos can either be professionally produced or produced on your smart phone or other video recording device. (Professional productions are very helpful, but the expense, which would be deducted from client recovery as a cost, is only justified if the injuries are sufficiently severe.) You can and should record various “day in the life” videos showing your potential jury all of the ways in which the injury or accident has affected your life.
What Should You Record To Tell Your Pain Story?
The injured person (1) taking pain pills or receiving therapy, (2) applying and wearing any “tens” unit, (3) applying heat or ice packs, (4) receiving therapy or other injury treatments (5) trying to do anything they could do easily before the accident unsuccessfully or with difficulty, such as rising in the morning, walking, grooming, dressing, eating, bathing, moving around the house, interacting with family members, getting the mail, running small errands, undressing and getting into bed at night, (6) experiencing periods of increased pain, and (7) participating in any other life activities that he or she has had to modify as a result of the injury. Overall, the video (or series of videos) should reflect a full day of your life, including personal & family time, recreational time, and professional time. Try to also somehow keep a record of the date, time and name of the person recording each video (each time you save each video), which is important for something called “authenticating” the video at trial (basically someone must testify that they recorded the video and when).
Don’t Be Overly Dramatic!
Never attempt to overly dramatize any “day-in-the-life” videos because those tactics can lead to an objection regarding the admissibility of the videos (which is one of the reasons to avoid narration). Techniques that you should avoid when recording videos: artistic highlighting that emphasizes some scenes more than others, obvious exaggerations, camera angles that focus on the area of injury (wide angle shots are generally better to avoid any argument that videos should not be admitted on the grounds that they are “unduly prejudicial” to the defense, although it wouldn’t hurt to take a few with any relevant narrow angle shots if you are taking a series of videos), self-serving behavior scenes which serve little purpose other than to create sympathy or contain other unduly inflammatory material.
Videos may not be particularly helpful in a less serious case, where you have mild to moderate pain but otherwise look normal while doing most things (except you should still record yourself taking pain pills, receiving therapy, applying ice packs, applying tens units, or doing anything else to deal with your pain). When recording these videos, be careful not to use narrow or focused camera angles.
Probably Admitted At Trial
These videos can be excluded from trial based on relevance, prejudice, hearsay, and other evidentiary objections. The trial judge generally has a good deal of discretion regarding whether any particular video is, for example, too prejudicial to the defense. This is why you need to accurately portray your injuries, not try to make them appear worse than they are. Don’t narrate (for example, don’t say “my husband is taking his pain pills now.”) And don’t make sounds that aren’t normal. Narration can be done at trial. Just act and speak as you normally would during any video. This will give you and your personal injury lawyer the best chance for having this valuable evidence admitted at trial. Also, take numerous videos over time, and make sure you give them to your personal injury lawyer relatively soon after you take them (because they must be produced during the discovery phase of your lawsuit or would be subject to potentially valid objections due to failure to produce). Even more than written pain logs, video evidence is perhaps the most compelling way to tell your pain story. Do not overlook this valuable method of proving your injury or accident damages.
- Where I WorkI work closely with my clients throughout their case to make sure they are doing everything within their control to get the highest settlement or verdict in their personal injury case. My offices are located in Orlando and Winter Garden, Florida, but I accept moderate to severe injury cases from anywhere in Florida or Georgia, which includes the nearby cities of Ocoee, Clermont, Lakeland, Dr. Phillips, Altamonte Springs, Apopka, Casselberry, Maitland, Winter Park, Winter Springs, Mount Dora, Tavares, Eustis, Leesburg, Kissimmee, Deland, Deltona, Daytona Beach, Heathrow, Melbourne, Tampa, Miami, Jacksonville, Tallahassee, Valdosta, Macon & Atlanta.
- What Are Personal Injury Cases?Personal injury cases requiring proof of pain and suffering include car accidents, truck accidents (including 18 wheel and commercial trucks), motorcycle accidents, pedestrian accidents, bicycle accidents, slip and fall accidents, nursing home abuse, unsafe products, defective security, swimming pool, boating accidents, theme park or any other accident or injury which might have been caused by some other person or company. Pain and suffering also must be proven in wrongful death and medical malpractice cases. If you are unsure whether you might have a personal injury case, call me today for a free, no obligation consultation.