Noneconomic losses, or pain and suffering losses, are the second component of compensatory damages in an injury case. The other component is economic (out-of-pocket) losses, such as property damage and medical bills. Pain and suffering damages also include damages for things like loss of enjoyment in life, emotional distress, and loss of consortium (companionship).
Money doesn’t buy happiness, and money doesn’t begin to fill the emotional void that a personal injury creates. Quite frankly though, it helps. Eventually, our brains accentuate the positive and eliminate the negative. If I go to a restaurant and the food is good but the service is bad, I’ll probably remember the fine food instead of the rude waiter. If accident victims receive pain and suffering settlements, they’ll eventually remember the settlement and not the injury. At least that’s the way it’s supposed to work.
Determining Pain and Suffering Losses
This task is one of a personal injury lawyer’s hardest jobs. It’s almost impossible to put a price tag on something like going for a walk down the block without pain or pushing harder on a swing when a child screams “HIGHER!!”
For starters, many attorneys partner with doctors, psychologists, and other outside professionals. These individuals review the victim’s medical conditions and offer their expert opinions about the effects of that condition.
Friends, family members, and coworkers often chime in as well. These individuals cannot testify about something like the chemical effects of a brain injury. But they can testify about how this injury affects the victim on a daily basis.
Once all this data is in, to determine a fair amount of noneconomic losses, an attorney usually multiples the economic losses by two, three or four. Besides these witness evaluations, the facts of the case and any applicable legal doctrines also come into play.
If the victim was in a bad car wreck, the insurance company might be motivated to settle the claim and keep things quiet. The opposite is also true. If the insurance company has a strong legal defense, the victim might be motivated to take the money and run.
The Settlement Process
Together, the economic losses and the pain and suffering estimate make up the settlement value of a legal case. A settlement value is like an asking price. Lawsuit settlement negotiations, like price negotiations, involve some give and take.
Meaningful settlement negotiations cannot begin until medical treatment is at least substantially complete. If a case settles too early, the settlement won’t account for all probable future medical expenses, and the victim will be financially responsible for these charges.
Frequently, the settlement process drags on until the judge appoints a mediator. This person oversees settlement negotiations and ensures that both sides negotiate in good faith. Low-ball offers and “I’ll see you in court” ultimatums aren’t good faith negotiating tactics. Therefore, a good mediator can usually engineer settlements even when settlement seems hopeless.