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Discovering, Presenting and Calculating A Client's Intangible Losses

As plaintiff’s trial attorneys, we have one goal: to acquire monetary compensation for our client's injuries. Damages must be at the forefront of our case-in-chief and in the minds of our audiences, whether we are presenting our case before a neutral mediator or later down the road to a panel of jurors.

Lawyers must learn the intimate details of your client’s loss—the details that are imperative for successfully obtaining money for pain and suffering.

Talking about money can make some people uncomfortable. Some of us were raised not to discuss our earnings or inquire into other's finances. While this may be desirable in a personal setting, it can cripple you in the courtroom if you shy away from a strong presentation of the monetary value of your case and what you are requesting of the jury.

Discussing Damages

By and large we are comfortable presenting evidence of the economic damages portion of our client's case. Economic damages are easily discernable—past lost wages and past medical bills are clearly documented. Future medical bills and loss of earning capacity can be established through expert testimony. These are concepts and figures that a jury can understand without the need for much assistance.

Where jurors truly need you is in grappling with the concept of noneconomic damages—those damages for the pain and suffering your client has had to endure because of someone else's wrongdoing.

Florida has a standard jury instruction, embodied in 6.2(a) that illustrates the Florida Supreme Court's recognition of the elements of pain and suffering that a jury shall consider in a personal injury case:

"Any bodily injury sustained by Plaintiff and any resulting pain and suffering, disability or physical impairment, disfigurement, mental anguish, inconvenience, and loss of capacity for the enjoyment of life experienced in the past or to be experienced in the future. There is no exact standard for measuring such damage. The amount should be fair and just in the light of the evidence."

The phrase "loss of capacity for the enjoyment of life" has correctly been construed as a broad catch-all, as each plaintiff will have vastly different life experiences and be detrimentally affected by the negligence of another in varying ways.

Understanding Your Client

Analyzing how you will go about guiding the jury to compensate your client for a sum of money for pain and suffering needs to start the moment you meet the client. Do not ignore the blatant truth that the juries often choose to compensate a plaintiff for noneconomic damages based on how likable they find him or her as a person.

To be the best advocate for your client, you should strive to find out as much as you can about who your client is as a human being. We often take this for granted until shortly before trial, when we attempt to garner a sense of how the jury will perceive our client and how strong the testimony of before and after witnesses will be.

Thinking about your clients—who they are, what is important to them, how their injuries have affected their lives—as an afterthought is not only being a poor advocate, but it can be devastating to your case.

Make Time for Your Client

In fairness, we are busy. Litigation is not an 8 am to 5 pm desk job. While you may not be personally signing up the client, nor even the attorney attending your client's deposition, you must take the time to sit down with your clients, face-to-face and long before trial to hear their story.

No matter how great you are at what you do, you simply cannot successfully ask a group of 6 or 12 strangers to understand the sense of loss your client has suffered if you yourself have not taken the time to do the same. If your client is merely a name on a file, a claim number, or a stack of medical records to you, then you may be better off serving the legal field as a defense attorney.

Learning the intimate details of your client's loss—the details that are imperative for successfully obtaining money for pain and suffering—takes effort. Clients are people. People are generally reserved when talking about aspects of their lives that are no longer what they were before their injury.

  • Don't expect your clients to want to talk about how their partner has shied away from them because they've lost the ability to be intimate, or have suffered a loss of a limb or permanent scar.
  • Don't expect your client to give you a long soliloquy on how it feels to be stared at in public because they've suffered third degree burns on 80% of their body.
  • Don’t expect your client to volunteer how it feels to have to search out the handicap accessible areas of places they once frequented because they are confined to a wheelchair as a result of their injuries.


Learning these things about your client takes time and effort and an ability to ask questions that allow your client to express themselves freely.

Don’t Count on Deposition Testimony

We may often expect and even depend on finding out this sort of detail about our client during our client's deposition. While you may be able to develop a surface level understanding of what will become the basis for your client's claim to noneconomic damages from what you've learned at their deposition, do not base your case on it.

Your client's deposition is an opportunity for the defense attorney to view your client as a person for the first time—it should not be yours. I am often still amazed at the golden nuggets of information I discover about my client through informal conversation. These golden nuggets become the cornerstone of our story on our client's right to damages for pain and suffering.

You cannot discuss "pain and suffering" in the abstract. Abstract concepts, ambiguity, and the intangible are what feeds the defense and can limit our recovery.

Illustrating Intangible Losses for the Jury

We know the law provides our clients with the right to be compensated for the loss of enjoyment of life, mental anguish and humiliation, but we cannot depend on the jury to figure out what that means to our client on its own. It is our job to illustrate these losses—to shine a glaring light on them in the courtroom for all to see.

While we must do so with grace and tact, we cannot shy away from discussing the ugly consequences that the defendant's conduct has had on our client. If we shy away from it and have difficulty discussing it in the courtroom, we cannot expect jurors to discuss it during deliberations.

Defeating the Defense’s Motion in Limine

What does anguish look like? Let's say your client is involved in a rear-ended car crash by a drunk driver and has severe injuries to his neck and back. His injuries require surgery. He is now terrified of driving. In the past, he left his house at 8:30 am to be at a 9 am appointment 30 minutes away. Now, because of the stress and anxiety that driving gives him, he must leave his house two hours early to ensure he arrives safely and constantly checks his rear-view mirror.

Moreover, he cannot watch his favorite football team without seeing advertisements for beer and other alcoholic beverages. He cannot see these commercials without being thrown back into a fragile emotional state and being reminded of what a drunk driver has taken from him.

Defense attorneys will undoubtedly file a motion in limine to preclude any reference to the fact that the defendant was drunk at the time of the collision and argue that the unduly prejudicial effect of that information would outweigh any probative value. Especially when liability is not in dispute, defense attorneys are often successful in limiting this type of testimony as being irrelevant to the jury's determination of causation and damages.

If your client has suffered significant anguish over the knowledge that the person who caused his injuries was drunk, it is imperative that your client documents these feelings with a mental health physician. Being armed with the medical records documenting your client's anguish over the fact that he was hit by a drunk driver will enable you to defeat the defense's motion in limine by arguing that the evidence of the defendant's intoxication is relevant to prove anguish as an element of noneconomic damages. This will maximize damages and ensure that the jury has a full appreciation of your client's injuries.

Presenting Evidence of Your Client’s Pain & Suffering

When interviewing your client at the start of the case, determine who your potential before-and-after witnesses will be. Even the most likeable plaintiff will have a difficult time testifying on the stand regarding the extent of his injuries and the devastating impact on his life for any significant length of time without sounding like a whiner.

Because of this, it is advisable to be able to tell your client's story through the testimony of witnesses who can speak to how your client has been adversely affected. Grief and pain counselors can also be used to testify about your client's emotional state.

Calculating the Loss

Putting a dollar value on noneconomic damages can be challenging. Juries will often base their award of noneconomic damages in light of the economic damages in your case. Because of this, a strategic decision must be made in instances where the economic damages are low and the real focus is on the value of the pain and suffering.

Such a case might exist when your client has an amputated limb and the amount of past and future medical bills may be relatively minimal and fixed in comparison to the value of the noneconomic damages based on the devastating emotional toll of going through life without a limb.

Time can be used as a baseline for calculating noneconomic damages. When clients detail their daily routines to me, there is a common thread among their stories. That common thread is one of an individual who tries to do the things they once did before they suffered an injury, but who now must do those things enduring pain and allowing for much more time than was once required. The amount of extra time that daily activities now take your client is time that the defendant’s carelessness has taken away from your client. Your client should be compensated for that amount of time.

For example, doing laundry once a week took your client an hour before she suffered her injuries. Now, because your client lives with constant lower back pain and has been placed on a lifting restriction, it takes her twice as long by having to divide the laundry into two loads. An extra hour per week performing this simple household task equates to an additional 52 hours per year that your client spends on the defendant's clock. You can argue that hour is worth an additional $100, $500 or $1,000 per year.

Breaking down your client's loss of capacity for the enjoyment of life into increments of time and then providing the jury with a dollar figure range of what that time is "worth" gives a structural framework for awarding noneconomic damages and helps to eliminate the abstract and intangible nature of pain and suffering.

Managing Client Expectations

When a client walks through my door, she is generally more concerned with her physical pain and the effects that her pain has had on her life than of the exact dollar amount of her medical bills to date. When preparing for mediation and discussing the value of her claim, the client will undoubtedly inquire into the worth of her pain and suffering.

First and foremost, it is important to educate the client on the applicable law in your jurisdiction relating to the award for noneconomic damages. In Florida, the law is clear regarding when you may recover noneconomic damages in the case of a motor vehicle collision. The law states that you must have a "permanent injury" to be eligible for damages for pain and suffering. A permanent injury under Florida Statute, § 627.737 is defined as:

(a) Significant and permanent loss of an important bodily function.

(b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.

(c) Significant and permanent scarring or disfigurement.

(d) Death.

In the case of a client who has suffered a muscle and ligament sprain/strain type injury as the result of a motor vehicle collision, it is beneficial to explain the applicable law to the client so that he may gain some insight into how the defense is evaluating his claim and how a jury may return a verdict.


Successfully presenting and obtaining an award of damages for pain and suffering is truly an art and not a science. Accomplishing this goal should begin with interviewing your client, hearing their story and using pieces of information you gather as the cornerstone for your presentation at trial. Providing the jury with a range of a dollar figure for the value of your client’s noneconomic damages and using time and the amount of economic damages as a benchmark to calculate pain and suffering will remove the ambiguity associated with awarding these types of damages that the defense will depend upon in defeating your claim.

img class="wp-image-6867 alignright" alt="Julia McGrath, legal news, law news, jury verdict, settlement" src="" width="112" height="140" />Matt A. Dolman is a member of The National Trial Lawyers top 100 trial lawyers. He and Julia N. McGrath are attorneys practicing at the Dolman Law Group in Clearwater and Bradenton, FL. Matthew is a member of The National Trial Lawyers. He has extensive experience handling first- and third-party insurance claims of all types and, more specifically, claims in the following injury areas: automobile accidents, wrongful death, catastrophic injury, spinal cord injuries, brain injuries, plus violations of Florida’s Consumer Collection Practices Act and asset protection for Florida physicians.

Julia practices in the areas of personal injury, trucking and motorcycle accidents, traumatic brain injury, wrongful death and insurance carrier bad faith.

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