Throughout a 57-year legal career from which he never fully retired, Francis Hare’s unique approach to his profession left a permanent impact on the system of justice he so faithfully served. Mr. Hare was a nationally known plaintiff’s trial lawyer from Alabama who wrote a book in 1976. The book had a passage on the subject of pain-and-suffering which has been quoted over the years. There are some concepts about arguing pain that are still compelling after all the years since he wrote them. Here is his discussion about pain.
One of the most rewarding experiences or an advocate is to obtain a monetary judgment in a personal injury case which is truly compensatory for the plaintiff’s pain-and-suffering. It has only been during the past half-century, however, that lawyers have been available to translate the intangible elements pain-and-suffering into the very tangible medium of dollars and cents for juries.
There are a few people who have been the victim of intense and prolonged pain ever receive a jury verdict that is anything like adequate for what they have suffered. Pain is not only unpleasant to endure; it is unpleasant to think about. The only chance of gaining a fair trial for the pain-and-suffering is to persuade the jury to steel themselves to the disagreeable task of looking at the shocking reality of what pain is and what it does to a person. It is human nature to turn our minds away from the impact of other people’s troubles. If we did not have that “mental block,” we would all be the victims of such anxiety and concern that we could not stand it. The trial lawyer and the trial jury have the duty to overcome that abhorrence and look at pain and see it for what it is. It is like opening a window into hell.
Pain is a cruel monster, choosing as its victims the helpless and those who are the least able to bear it. It loves to prey on children. It attends every human birth, and it torments the last minutes of the dying, who have little enough time to make their peace with God and say goodbye to their loved ones.
When the time comes for defendant to pay for the misery has infected, he asks that you take an attitude of tolerance towards pain, is if it were not worth a lot of money. An hour of pain is a sample of hell. He asks your mind to tolerate pain, which is something your body will never do. It is this sickening horror, this tool of torturers, the scourge of mankind. The jurors are asked to belittle and make excuses in order to deny this man recovery for compensation. The defendant is like the man in the Bible who was willing to show his sincerity with everything but money. When asked for that, he went away sorrowing though he had great possessions.
If you believe in religion, you believe in a God who thought of nothing worse as the supreme punishment but that of pain in hell. If you do not, you believe that the collective imagination of man can conceive of nothing worse.
Look at the law’s attitude towards pain – wherever it arises outside of an action for damages. The law forbids cruel and unusual punishments. The law says to the state: “you conflict capital punishment, but you cannot use the lash on any man. You can take a man’s life so long as you do it without pain. You can kill him, but you cannot hurt him.”
What about the men who invented anesthesia? The men of medicine who taught us how to get rid of the pain during an operation are immortal. They are heroes of science because they taught us to push back pain temporarily.
I do not see how a man can ask you to make friends with the idea of pain, or to tolerate it, any more than he would ask you to accept and fraternize with a murderous enemy of our country, or to say of a malignancy in your body, “it is nothing but a cancer.”
I hope this passage from Hare’s writings on pain will offer some new concepts on presenting this difficult issue to the jury.