By Jonathan Vallano
Mental and emotional distress is experienced by many individuals at some point in their lives. Therefore, it should come as no surprise that psychological injury can, and does, result from many forms of negligent conduct. In some cases, this negligent conduct may come in the form of a car accident that leads to post-traumatic stress disorder (PTSD), a slip and fall that initiates a chain of panic attacks, or domestic abuse that results in debilitating depression. Despite the difficulty of raising these claims in court, these injuries are frequently adduced by plaintiffs for compensation. Many plaintiffs’ attorneys will readily endorse the notion that succeeding on a psychological injury claim before or at trial is extremely difficult: and they may have a point (much to defense attorneys’ satisfaction). This post discusses what we know about psychological injury claims and how they are perceived and handled by legal decision-makers, as well as suggestions for litigators (both plaintiff and defense attorneys) to deal with these claims before and during trial.
Empirical research supports the notion that psychological injuries impact civil jurors’ liability and damage determinations. Generally speaking, the more severe the psychological injury, the greater the likelihood of finding liability and awarding more compensatory damages. But before going into a bit more depth, it is important to address the applicability of this research to litigators. In fact, as many litigators read this, they may be yelling at their computer, “Most of my cases don’t go to a jury trial, so this doesn’t help me!” With all due respect, it does. Jurors and judges, despite their differing backgrounds and legal training, often make similar decisions when presented with identical cases, and judges often agree with jurors’ decisions in their cases (and anecdotally, I can tell you that the judges I talk to after a verdict is rendered rarely disagree with a jury’s decision). What’s more is that whether someone is an attorney, arbitrator, mediator, judge, or juror, they all make decisions in similar ways, and are thus influenced by similar factors. Therefore, in most cases, there is no reason to believe that legal officials (e.g., judges, arbitrators) and non-legal officials (e.g., jurors) would make different decisions.
Regarding liability, it’s generally found that more severe psychological injuries favor the plaintiff , but it often depends upon (1) jurors’ expectations for psychological injury, and (2) the perceived credibility of the plaintiff. Jurors that enter the courtroom believing that no reasonable plaintiff will suffer PTSD from a car accident will likely be unaffected by injury severity. Similarly, jurors who don’t perceive the plaintiff or their injury claims as credible will be less likely to hold the defendant responsible for the plaintiff’s injuries. It should be noted that the #1 predictor of all civil jury verdicts is the strength of the evidence- the stronger the case, the better chance the plaintiff has at trial—and of course, to award compensatory damages, jurors must find liability.
Regarding compensatory damage awards, jurorsare instructed to consider the severity of the plaintiff’s injury when deciding on the appropriate amount of damages . Therefore, it should come as no surprise that injury severity is one of the variables with the strongest impact on jurors’ compensatory damage awards (along with the plaintiff’s age and permanency of the injury ), and exerts a stronger influence when compared to liability decisions. The research generally finds that the greater the psychological injury, the larger the compensatory damages award given to the plaintiff, with one caveat: as long as the injury is perceived by jurors as “reasonable,” or a plausible result of the defendant’s conduct. However, it takes extremely severe injuries in a particular cause of action for jurors to consider an injury unreasonable.
In general, it is my opinion that a plaintiff’s attorney should “tread lightly” (for those of you Breaking Bad fans) when dealing with psychological injury claims, and in particular, claims resting solely upon psychological injury. These are notoriously difficult claims to litigate and receive compensation, particularly in certain parts of the country (e.g., the Rust Belt). Many jurors (and judges, for that matter) do not understand psychological injuries, do not perceive them as credible, and have difficulty translating these injuries into a significant dollar amount. A good defense attorney can play off of these general beliefs and emphasize how psychological injuries are experienced by all of us on a regular basis, many people exaggerate or falsify these commonly experienced injuries, it’s difficult to determine whether the plaintiff’s distress was caused by the defendant’s conduct, and how much is this distress really worth, when we all experience degrees of these psychological injuries throughout our lifetime.But maybe, just maybe, plaintiff’s attorneys shouldn’t tread too lightly, particularly in cases involving severe psychological injury. First, it is important to analyze the severity of psychological injury and the overall strength of the evidence before taking a case—ideally in a more systematic way, other than just using experience and intuition. It would be useful for attorneys to record their perceptions of the strength of evidence and the injury to see how their perceptions match with the outcome of the case, in order to ensure they accept only the strongest cases in the future (and know how to effectively deal with the weaker cases). Second, it is important not to under-emphasize psychological injuries during settlement negotiations, ADR, or trial. Because injury severity is a major determinant of compensatory damage awards (and can increase the chances a jury will find liability), it is paramount to make the effect of these injuries on the plaintiff’s quality of life clear to the jury, in as tangible and concrete a manner as possible. After all, psychological injury can be just as bad, if not worse, than physical injury.
Jonathan P. Vallano is an Assistant Professor of Psychology at the University of Pittsburgh at Greensburg and also serves as a litigation consultant based in Pittsburgh, PA. Dr. Vallano specializes in case and witness preparation before or during trial as well as jury decision-making. He also serves as an expert witness regarding the accuracy of eyewitness memory. His website is www.jpvallano.com and can be contacted at firstname.lastname@example.org.
2The impact rule that applies in most jurisdictions, requiring that a plaintiff must suffer from physical injury to recover for psychological injury, which in some jurisdictions, must be reasonably related to the physical injury
3Vallano, J. P., Winter, R. J., & Charman, S. D. (2012). Is this injury reasonable? Do psychological injury expectations affect mock jurors’ legal decisions in a sexual harassment case? Psychiatry, Psychology, & Law, 20, 834-852; Vallano, J. P. (2013). Psychological injuries and legal decision-making in civil cases: What we know and what we do not know. Psychological Injury and Law, 6, 99-112; Winter, R. J., & Vallano, J. P. (2012). The impact of psychological injuries on sexual harassment determinations. Psychological Injury and Law, 5, 208-220.
5 Wissler, R. L., Evans, D. L., Hart, A. J., Morry, M. M., Saks, M. J. (1997). Explaining pain and suffering awards: The role of injury characteristics and fault attributions. Law and Human Behavior, 21, 181-207., Vallano, supra note 3