Proving Intangible Damages

by Bill Forteith

Every injured person wants to be justly compensated for the injuries and damages they sustained as a result of the negligent conduct of another. Some of these damages are readily calculable, such as necessary and reasonable medical care and lost wages. Those damages are tangible in nature. Yet some damages, such as physical pain and mental anguish, disfigurement and physical impairment, are intangible because they are not subject to a specific mathematical calculation. The award of such damages is left to the discretion of the jury, which will have wide and varied opinions regarding an amount that would compensate a victim for such injuries. There are several ways an injured party can help the attorney present a solid case concerning these intangible damages in order to receive fair compensation for his or her loss.

Once one or more injuries manifests itself, begin to keep a diary or calendar about the nature of the injuries (neck, lower back, etc.), the intensity of the pain (sharp or dull) and its frequency. Your attorney’s goal is to settle your case as quickly as possible, but if litigated, a case can take a while. Therefore, these present-tense diary notes can provide reminders later on when a victim’s testimony is given. Also, if one sustained multiple injuries (bruising, lacerations, etc.) some of those might be forgotten as they heal. Take photographs of visible injuries as soon as possible. Continue to keep your log throughout treatment and rehabilitation, and document good days and bad days. The more detail you can provide jurors about your injuries, the more personal your case will become to them.

In addition to documenting injury, gain a layman’s understanding of the treatment that you are being given by medical personnel. Remember that your written medical chart will be an exhibit in a trial, so make sure that your doctor includes statements that he has taken you off work or placed you on light duty. If you doctor recommends surgery, make sure that he notes his recommendation in your chart. Even if the doctor told you about your condition or prognosis during an exam, if it is not documented, it did not happen in the minds of the jury. Always ask about test results — you may not remember exactly what they were, but you will be asked by the other side if you discussed results with your doctor.

Finally and most importantly, how did this accident change your life, either in the short term or indefinitely? Make brief notes about these events. Did your sleep pattern change? Things such as difficulty getting to sleep, waking in the middle of the night in pain or being so exhausted that it is difficult to work matter to a jury. People deal with injury three ways: 1) they stop doing the activities that cause them pain; 2) they compensate, such as limping (which relieves pain but could cause back problems); and 3) they just endure it (I have to work to support my family).

Details matter. It’s not just “I can’t do my job;” it is how you were changed (“my job requires much travel, getting in and out of the car;” or “my neck bothers me since I use the computer all day”). The more detail, the better understanding the jury has. Even your sports and leisure life changes. And guess what — you don’t have to be a marathoner. Testimony about your life, such as “I used to walk about a mile every night, but now I can’t do it since I’ve gained weight,” “I did needlework, but my neck hurts too much to concentrate,” or “I went to the family reunion, but I just wasn’t myself because I hurt too badly,” all makes a difference.

One time I had a professional paintball player who received a substantial verdict from a jury because he could no longer participate in the sport. Another lady said that she was harmed spiritually because her Christian faith was highly demonstrative and she needed to go every Sunday and Wednesday night to worship. So, when she was injured in an accident and could not attend services (or sometimes attended in pain), it impacted her emotionally, which is a compensable claim.

Mental anguish is the psychological impact of an accident — not mere humiliation or embarrassment, but the emotional torment inflicted on the victim as a result of the negligence of another. Fear of losing a job because of inability to perform tasks, hyper-vigilance on the roadway for fear of another accident and family problems associated with injuries sustained are all examples of mental anguish claims. Once again, the injured party should document incidents of mental distress in a diary or tangible format, because just as physical injury improves or heals, so does emotional anguish. If forgotten, the testimony about the victim’s emotional state is not presented to the jury. The jury needs to understand what the victim of another person’s negligence endured. If a jury is provided only vague evidence about physical pain and mental distress, the chances of a fair verdict are diminished.

With credible evidence about intangible damages, there is a substantially greater opportunity to maximize personal injury recovery compensation for the accident victim.

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