Last week, I wrote about a client who was hit by a car while she was crossing the street, and another client who was hit by a car while she was walking on the side of the road. I explained that under Illinois law, the two women are entitled to reimbursement of their medical bills, lost wages for the time that they are unable to work, and other expenses that are related to their injuries. They are also entitled to receive compensation for their present and future pain and suffering. I also discussed the McDonald’s coffee case and explained the difficulty that lawyers have in presenting the topic of pain and suffering to a jury. Today, I’m going to discuss how I explain to a jury the “value” of a person’s pain and suffering.

For the purpose of this discussion, I’m going to provide you with some background information about a previous client — I’ll call her Jane — who had an injury to her low back as a result of a rear-end collision. For two years after the collision, Jane received treatment for her injuries, which included pain medication, physical therapy, chiropractic adjustments, and localized injections to alleviate the pain.

After two years of treatment, Jane was still suffering from pain in her back. She went to bed every night and woke up every morning with back pain. She also had problems climbing stairs in her house and was no longer able to lift her young grandchildren because of her back pain. She also experienced severe pain when she was intimate with her husband and experienced additional pain for at least three days after each time that she worked in her garden. Before the collision, Jane and her husband went on several road trips each year to different antique car shows where they would socialize with friends and check out all the cars that were on display.

Jane’s injury occurred while she was on her way to an Avanti’s restaurant. She was hit from behind by a City of Peoria truck while she was stopped on University Street, waiting to turn left into the parking lot of Avanti’s. Her left turn signal had been activated, and she was waiting for oncoming traffic to pass before she could make her turn. The driver of the truck was a city employee who was a decent guy who simply was not paying attention to what he was doing. He had turned to look at something that was occurring on the side of the road and when he refocused his attention on where it should have been, Jane had already stopped. He slammed on his brakes, but it was too late for him to stop without crashing into the rear of Jane’s vehicle.

Jane subsequently received extensive treatment for her back and while her condition improved, she never completely recovered. Despite the treatment that she received, she ended up having all the problems that I described above.

After I submitted Jane’s medical records and bills to the City of Peoria, the city refused to make a settlement offer. I had no choice but to file a lawsuit against the city on Jane’s behalf. After litigating the case for a couple of years, the city attorney who was assigned to the case made an insultingly low settlement offer. When I complained about how unreasonable the offer was, she told me that she had recommended a higher settlement amount to her boss, but he refused to authorize her to offer that amount to settle the case.

The case ended up going to trial in front of a jury of 12 people. After the evidence was presented to the jury in the form of testimony and documents, such as medical bills and pictures of the damaged vehicles, I had a chance to stand in front of the jury and make a closing argument. The jury ended up awarding a significant amount of money to my client — much more than what my client was willing to settle the case for before the trial.

Over the years, I’ve developed a very thorough presentation of what pain and suffering is and how the value should be placed on pain and suffering. When it’s time to discuss pain and suffering, I start out by asking a few simple questions:

How do we place a value on pain and suffering? What’s the value of a human being? What’s the loss in value of a person who is no longer able to do the things she was able to do before she was injured?

I then make the following statement:

Fortunately for all of us, in our society, we don’t place a dollar value on people. If we did that, we would be treating people like they were nothing more than mere property. If we were to start placing a value on individual people based on whom they were, their age, their ability, their genes, their strengths, and their weaknesses, there would be a point in time when we would begin treating each other like personal property — something that could be bought and sold for a price and then later disposed of because it had lost most or all of its value.

I want to ask you to think about something. There was a time in our history when certain individuals in our country were treated as though they were personal property. The time that I’m referring to was when slavery was allowed in our country. From a legal standpoint, slaves were thought of as personal property that could be bought and sold from an individual owner or at a slave auction. Each slave had a value placed on him that was based on his condition and abilities. For example, an 18-year-old black man with strong arms and a strong back had much more value to a property owner than a 35-year-old black man who had a bad back.

After slavery was abolished, there was no longer a price that could be placed on a human being. When you think about it, there’s really no price that can be placed on a person that you love. What’s a good mother worth in dollars? What’s the dollar value of a loving child or grandchild? If one of them were killed or injured because of another person’s negligence (carelessness), what value would you place on their life or their inability to be able to do the things they were able to do before they were injured?

It’s impossible to place a value on a human being, especially someone that you love with all your heart. On the other hand, it’s easy to place a value on personal property. One example of personal property is the washer and dryer that I have in my home. If a car crashed into my house and ruined my washer and dryer, if those appliances were new, I could easily present evidence in a trial as to the cost of a new washer and dryer. If my washer and dryer were used, I would also be able to present evidence of their value by showing what similarly used appliances are being sold for on the Internet. That would be sufficient evidence in Illinois to present in a case and convince a jury as to exactly how much money they should award to replace the washer and dryer in my home.

If I have a vehicle that is damaged by another vehicle because of the negligence of another driver, it’s easy to offer evidence as to what the cost would be to repair the damage to the vehicle. All I would need is the testimony of an experienced body shop owner who has made a career out of repairing damaged vehicles. He would be able to tell the jury what the cost of parts and labor would be to repair my vehicle.

You may have heard of American Pharoah, the racehorse that won the 2015 Triple Crown, the title that is awarded to a three-year-old thoroughbred horse who wins the Kentucky Derby, Preakness Stakes, and Belmont Stakes. Before winning the Triple Crown, American Pharoah was worth about $5 million. After winning the Triple Crown, American Pharoah was worth more than $50 million. His value could be proved in court because other racehorse owners were willing to pay in the hundreds of thousands to have American Pharoah breed with one of their horses.

If my client had been driving a truck that was pulling a trailer with American Pharoah inside the trailer and American Pharoah had been injured in such a way that he could no longer race or breed with other horses, it would be easy to present evidence in a trial that the loss to the owner of American Pharoah was $50 million. If the case were to go to trial, a jury would not have any problem awarding that amount of money because the owner would be able to prove the loss in value of his property.

I have one more example that I would like for you to consider. You’ve probably heard about Leonardo da Vinci’s Mona Lisa, which is a portrait of a woman that was painted on a plank of wood. There are other paintings by famous artists, most of which are on canvas. Whenever those famous paintings are auctioned, they sell for millions of dollars. Can you imagine someone paying a million dollars for some paint on a canvas? What would happen if I had one of those paintings in the back seat of my car and a negligent driver hit my car and caused it to burst into flames? What if the painting were damaged to the point where it lost half its value? Again, it wouldn’t be difficult to present evidence in a trial as to how much a jury should award me for the loss in value of my painting.

But if I do end up with some ruined appliances, a damaged car, an injured racehorse, or a partially burned painting, what adverse effect would that have on me for the rest of my life? As long as I’m healthy, I can move on with my life and recover from the loss in value of my personal property. But what happens when my body is damaged to such an extent that I am in pain all the time? What is that pain worth? And what if in addition to the pain that I’m having, I’m suffering? What is the suffering worth?

What is pain? What is the difference between pain and suffering? More on this topic next week.

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