UNDERSTANDING THE REALITY OF SUFFERING FROM INJURY

Both temporary and permanent injuries usually result in suffering. Lawyers who represent clients with injuries need to try to understand, as much as possible, the consequences of suffering clients endure. Here are some factors to consider in that regard.

Past suffering impacts our future life enjoyment 

Everyone is the product of their past experiences. Past experiences which involve injury and medical treatment can influence not just our present life, but carry over into our future as well.  Past experiences can rob people of their memories and stimulate their fears and worries.  If our past experiences involve pain, suffering and anguish it will also impact how we see and experience our future as well.

Suffering influences our relationship with others 

All of us are a part of a culture and a society. We all belong to a family, or a group or tribe with common rules and values. Suffering from injury can influence the behavior of members of the culture towards an injured person. The reaction of the culture or group can add to the pain of injury because of a change of relationship with their family or cultural relationships. The reaction can be one of acceptance, pity or isolation.

Suffering alters our roles in life 

We all have roles in life. Roles can involve our job, our marriage or other activity important to us. These roles often define who we are. When suffering from injuries interfere with a person’s life role, the person feels diminished by the loss of function that has become part of what makes them unique. When roles are firmly established suffering from injuries can cause a destruction or interference with performing this role. The result is additional suffering that diminishes who they are and their role in life.

Suffering interferes with relationship 

We all need relationships. We need contact with others. There is no consciousness without others, no speaker without a listener and no act that does not somehow encompass others. Suffering from injuries can change relationships. Injuries and the by product of suffering can produce a new personality, even a totally different person. What was once loved in the injured person can be taken away by the suffering and change that injury produces. Without the same relationship the person is diminished. It is in the relationship with others that the full range of human emotions finds expression and suffering can change the extent and nature of important relationships for everyone involved.

Injuries can cause suffering over a feeling of injustice 

People have an inherent sense of right and wrong. They believe wrongs should be redressed. Suffering from injury can represent to them an unfair situation without the ability to remedy the wrong. Instead they must endure it. This can create a feeling of powerlessness to remedy the unfair situation resulting in resentment and suffering.

Suffering interferes with our normal activities 

People are known by what they do daily in life. People have many set ways or habits in their day to day behavior. They take pride in these activities. Performing enjoyable functions, skills or hobby is often an essential part of who we are. When suffering keeps us from performing these activities, due to their injuries, people feel they are not the whole person they once were enhancing their suffering.

Suffering changes our self-image 

Everyone knows the importance of self-image. Who we are and how we see ourselves defines us. We are what we see ourselves as being. The mental relationship we have with our body and how we see ourselves is our own reality. We are what we believe. Injury and suffering from injury can alter the self-image and change the relationship a person has with their body in way that increases the pain.

Suffering impairs future hopes and dreams 

Everyone has hopes and plans for their future. Many people have a secret dream or imagined goal which may be known only to them. They may have aspirations hopes and goals. Suffering from injury can destroy their hope for ever realizing them. It may only have been a dream, but the loss of it can cause great distress and intense pain. The loss of future, hopes and dreams causes suffering which continues in life.

Suffering can impair our spiritual beliefs 

Almost all people have a spiritual life. This is usually expressed in religion but can be a bonding with groups, ideals or anything larger and enduring more than themselves. This quality of being greater and more lasting than one’s individual life gives a person a sense of a timeless dimension. Suffering can create questions about this belief by raising questions and challenging faith. When a person’s transcendent dimension is impaired or lost, it is felt as pain and suffering.

CONCLUSION 

Suffering resulting from injury and treatment for injuries doesn’t impact only the body, but the mind and the person as a human being as well. The more we understand our client’s suffering that is not strictly due to the physical injury, the better we can represent them.

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“DON’T TRY TO DESCRIBE A KISS CONCERT IF YOU’VE NEVER SEEN IT”  

 The title of this column is from lyrics written by the singer & song writer Jimmy Buffett in his song Manana. Why am I quoting it here? Because it captures a great truth plaintiff trial lawyers must learn. That truth is until we fully understand our client’s injuries and their impact we are not prepared to represent them as they deserve. We need to have empathy with our client’s situation.

What’s the best way to do this? Meet with and spend time with your clients. Go to their home or where they are being cared for. Spend the day or longer. Learn about their environment. Find out what is involved with daily activities such as toilet, dressing, feeding and the challenges involved. What about mobility and details you wouldn’t have known about if you hadn’t been there to see and understand. Listen carefully. Talk to not only the client, but everyone else involved in their care as well as their daily life. While watching a video made by a video consultant is helpful, it is not the same as experiencing things personally.

Empathy is understanding other people and their feelings. It can be done by using your imagination. You imagine how the are feeling or their pain, sorrow or other emotions. Empathetic understanding with your client is an essential part of plaintiff representation. The most effective way to do this is by spending quality time with clients. This process is known as the mirroring mode of empathy.

Neural Linguistic programing characterizes several perceptions for the process. The first perceptual position is “Self.”  Looking at the situation through your own eyes and evaluating your reactions. The second perceptual position is “other.” Putting yourself in the other person’s position and looking at the situation through their eyes and awareness. What’s it like for them? The third perceptual position is “observer.” This is a third-party view looking at the situation of yourself and the client to learn from that vantage point. The fourth perceptional position is “group.” Here you view the situation from the point of view your you, the client and others who are affected such as family or friends. The fifth perceptual position is “source.” View the situation from your belief or value system. This is a place of your empathy, compassion and acceptance for another perspective.

Let me illustrate this fact with a personal experience. My wife Lita and I traveled to South Africa in October to Kruger National Park for a photo safari. The airports at Dubai and Johannesburg we go through involve a lot of walking and with knee replacements that can be a challenge for me. We arranged a wheelchair to transport me from arrival to the departure gate both going and returning on the trip. I’ve represented many people who were wheelchair dependent, but here’s what I learned is the reality of just a few aspects of being in a wheelchair for a short time.

There is a loss of control the one thing virtually everyone has in common is the compulsion to be in control. We are more comfortable driving the car then being a passenger. We suffer distress when we lose total control over ourselves and our circumstances. Being pushed by someone else through a crowded airport stimulates that reaction. But, even if you are controlling your wheelchair there is a dependence upon the chair. You can’t get up and walk or run. You are stuck in the chair as the only means of getting around.

It reflects on personal dignity Sitting down when everyone else is standing and traveling with others while sitting in chair while they walk impacts personal dignity. We all have a self-image which is impacted by the fact we are different then everyone else. They are standing or walking while the person in a wheel chairs confined to a sitting position. 

In crowds you are at risk of colliding It never occurred to me before, but in crowd’s people who are walking are not paying attention to someone who is sitting lower in a wheel chair. They are reading signs, talking and otherwise distracted. The result is you are at risk for people inadvertently colliding or tripping over you. You need to stay vigilant and warn people to avoid it happening. 

You look up to see or speak to everyone else It’s a small, but significant point that your viewpoint is always up at people. You are sitting down and they are standing up. You look up to everyone. It’s like a small person in a crowd of professional basketball players. 

You must look for access When you are dependent upon wheels to get around you quickly learn the importance of ramps and sidewalks to accommodate your wheelchair. It means you don’t use stairs or escalators. Instead, you frequently go out of your way to find the elevator and access. That usually means it takes longer to get where you are going than if you were walking. It also creates a problem if you must transfer to a bus or car or use toilet facilities.  If you are going to a hotel or meeting, you also need to find out, in advance, if there is access for your wheelchair.

You have limited capacity to take things with you Wheel chairs are not built for suitcases or other objects you want to have with you. It mans you need to plan for transporting what you can’t take with you.

Imagine if you will, what the full reality is of being wheel chair dependent from these few brief experiences I had. It’s hard to believe that I represented wheel chair dependent people without ever going through this experience personally. Get involved with your clients on a personal level and you will be a better lawyer for them.

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CREATING THE RIGHT PERSPECTIVE OF INJURY TO A CHILD

Some time ago I was asked by a lawyer, to help him prepare the damages in a malpractice child case. It involved a delivery where the child had a brachial plexus injury. His concern was presenting the damage case to the jury. This was my advice about how I generally consider damages in a personal injury case.

I told him the first thing he should do is rid your mind or consideration of any other verdicts in similar cases involving an injury like this. You cannot compare one case to another no matter if the injuries are identical, because people are unique and not identical. Lawyers, venues and juries are not alike. There is no way to make any relevant comparison in that manner. Worse, if you allow your mind to be confined within the verdict and settlement ranges of  other cases, you won’t be able to correctly evaluate your case. You need to totally disengage any consideration about the results in other cases and look upon your case as unique and original.

I would approach damages in a role reversal manner starting with the now and thinking ahead through full life expectancy. I would review the impact of the injury at each age and each stage of life as it practically has consequences in daily life.  Think about the daily activities of the child. Eating, dressing, running, playing. When you use the swing at the playground you hold the rope with two hands. All of the activities involve two hands. Spend some quality time actually looking at children of that age play and go through activities. Look at the physical requirements normal children have for all of their daytime activities. Consider all the normal activities involving your client with the non functioning arm.

Now think ahead. Think to the first year the child goes to school and repeat the process of visualizing all of the activities involved in their life. Think about grade school and  meeting new children for the first time and the normal curiosity of children about things like an injured arm. What about playing with children on the school ground. Jumping rope, holding a baseball bat and other two handed activities. The injury impacts simple things like caring a lunch pail and schoolbooks. Advance your grade by grade visualization as they get older and consider the changing challenges daily encountered. Continue through grade school ,high school and college. Consider all of the activities and social relationships that will occur year by year as the child ages with this disability.

Consider dating, marriage, having children of his own and his ability to be fully active with his children. Sports is a particularly difficult situation since almost all sports involve the use of both hands. He will be marked as “different” no matter what. Remember, the damages involve practical considerations rather than medical. Medical opinions regarding degree of disability or other technical issues are irrelevant when we consider the real-world impact of functioning day to day. It is the daily relationships which play a role in self-image as well as social relationships.

You should be prepared to explain through the child’s perspective, how, at each stage of life, this injury has a direct impact in a practical way on day to day activities. Some might suggest that “the child will get used to the disability.” Others will suggest that” time heals all wounds” and  the child will eventually adjust. Some will claim that the child is lucky it happened as a child because they will soon be over it. Perhaps someone will note that veterans coming home from war have worse injuries and they seem to be able to function. Remember that you can’t “get used to” something which is brought to your attention repeatedly every time you deal with someone new.  These issues have to be dealt with in jury selection as well as in trial. It’s worth reminding jurors that an obvious disability like this is like having a birthmark on their face. No one “gets over it” because it’s part of their self-image which they are conscious of every time there is a new meeting or activity involving two functioning arms and hands. The child may learn to put on a good face, but deep inside it’s an open wound. They might learn to get around the injury from a functional standpoint but they will never learn to get around it from a self-image standpoint.

The damages are not primarily physical limitations. The damages are primarily in  an area no doctor can measure and no test can really evaluate. That’s the area of mental outlook and self-image. Keep in mind that unlike an amputation where a limit is gone and a prosthesis has been substituted to look like an arm. In this situation the arm is a flag that flops around in a noticeable way.

There is nothing profound in these thoughts, but perhaps something here will be of use in a case you have.

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