Juror’s Applying the Law in Pain and Suffering

When a person negligently causes physical injury to another, how should a jury determine compensation for the injured person? Oregon law tells us that when we hurt someone or damage something, we must make it right.  In a personal injury case, the law also tells us that physical injury is not the only factor to consider when determining how much to compensate for the harm caused.  Wouldn’t it be simpler, one might ask, and more easy to be fair, if physical injury was the entire basis?  For instance, the man loses the use of one arm.  One arm subtracted from two.  It’s his right arm, and he favors his right.  So maybe 60 percent loss – a very sterile and mathematical approach.

And one sees this in courtrooms, coming from the mouths of medical experts who debate minutely over whether the injury is to the cervical 5-6 vertebra or the 6-7.  But this is not what matters, ultimately, to a good juror.  It certainly matters nothing to the injured person.  As experienced trial attorney Moe Levine puts it,

“It would hurt no less if you believed the defendant, it would hurt no more it you believed the plaintiff’s doctor.”

And is someone’s injury only limited to the arm, or the back? Can you only injure a part of someone?  Anyone who ever experienced a serious toothache would say no.  It’s why someone who has been injured doesn’t care about medical opinions.  Injury befalls and affects the whole person, not one of his or her parts.  Serious injury and pain ripples beyond the self and affects daily life and the people around you.

So why does this matter to a good juror? 

A juror applying the law sees above and beyond a static physical injury. Jurors see the full extent of how the plaintiff has been harmed? In many ways, jurors see the full extent through proving pain and suffering. It is a truism to say that a whole is more than the sum of its parts.  This goes double for a whole human being.

A whole human being has a world of concerns that we must care about.  In large respect, a human exists out there in that world of their own concerns.  When activities involving care and concern are disrupted, the world is disrupted.  Reflexively, that person in their entirety is disrupted, ruptured.

The world of work is perhaps the best example.  The world of work is important to a person far beyond the money they make.  The worth, the immense value that resides in work is really self-worth – dignity.  When a physical injury is serious enough to separate someone from their work, a line has been crossed.  If another person has caused injury, the law tells us that, that particular person is responsible for making it right.

Doing something useful is about as attractive a prospect as there is for a human being.  There is dignity in it.  When this is taken away from someone, there is a significant loss to them.  It’s a loss that can’t be quantified by a sterile and mathematical examination of an injury.

Appreciation of all this might run through a juror’s mind while reflecting in the courtroom on the nature of life, with its dire demands and sometimes sparse rewards.  If a person is convinced someone has been harmed by a defendant past the point of being able to work. A juror may come to realize that justice demands all that can be done toward restoring dignity to the life of the defendant.  In this light, a verdict can stand as an overt recognition – a signpost pointing squarely to – the innate dignity that belonged to this person, and that dignity had been taken away from them.

In this light, attorney Levine has said the following to jurors:

“Please forgive me for saying this to you, but I feel it deeply – your decision may very well be the most important decision you have ever been called upon to make.  It does not concern you directly.  It does concern a fellow human being…second only to the angels.  A living man, functioning.”


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