Why Jurors Struggle To Empathize

In this episode of Summary Judgment, Josh and Aaron discuss how and why it's often hard for jurors to access empathy as it relates to the plaintiff's pain or suffering. 

 FVF Law is a well-credentialed, overwhelmingly 5-star reviewed personal injury law firm in Austin, TX. FVF strives to be the educational resource for the injured, available to guide those with questions about what comes next. It is FVF’s mission to ensure clients are prioritized and informed throughout the injury claim process, and to secure the best possible outcome. Josh Fogelman and Aaron Von Flatern founded FVF Law to offer a different kind of injury law firm, and a dignified alternative in the marketplace. They hope to show injured Texans that consulting a lawyer after an injury is a natural, and responsible thing to do.

Transcript

0:00:00.1 Aaron: Hey, Josh.

0:00:00.9 Josh: Oh, hey, Aaron.

0:00:02.7 Aaron: How are you physically feeling today? 

0:00:04.7 Josh: I feel great, except for I have this nagging pain in my lower abdominal muscle.

0:00:12.8 Aaron: That's great.

0:00:14.3 Josh: Yeah. Thanks man.

0:00:15.3 Aaron: [chuckle] I mean, that's really great, and I wanna thank you for helping me introduce this topic. It's called Why Jurors Don't Care about Your Pain and What Lawyers can do about it. So, what do you think I mean by that? 

0:00:30.3 Josh: I think what you mean by you telling me how great it is that I have a pain in my lower abdomen is that you are a sociopath. That's what I think.

0:00:37.7 Aaron: [laughter] Well, I was only not listening as much as jurors don't listen. To be fair. I know you said something about something, that's as far as it went in my brain. But there's another reason jurors don't care about your pain. Not just because they're not listening, but they, when I say care, I mean, kind of relatively speaking, they have trouble accessing empathy when it comes to other people's pain. And this is sort of an interesting psychological discussion. That's why I brought it in here. 'Cause I feel that as lawyers, we get pretty focused on pain. I mean, that's, you know, we are in the personal injury business and you would think, and you see on TV, "Pain and suffering, pain and suffering, pain and suffering". You would think that's all we're talking about. That's all we care about. But in reality, people struggle to access other people's pain. And if you wanna get a jury to do something really good for your client, you actually need to go after some other stuff. What do you think I'm getting at? 

0:01:45.7 Josh: I think you're getting at the fact that I should probably go see a doctor and maybe get an ultrasound.

0:01:52.4 Aaron: Yeah. So that, right now, if I hear you say that, I'm like, "Oh man, that sounds really inconvenient". He's gonna have to get on the phone with a doctor. You have to drive across town, lay down and have someone apply some sort of, you know, jelly to his abdomen and then ultrasound the abdomen and then have to wait on results with some anxiety. All that sounds bad. And I can personally access that. I can, you know, because I'm picturing my own day, right? Everything comes back to me as a pretend juror. I'm like, okay, well what would that be like for me? And that's, you know, you just hit on it. It's the sort of interruption in life. The things you can't do that you would like to do, the things that you're forced to do that you don't wanna do.

0:02:38.8 Aaron: Those are the things that studies have shown humans can respond to better. Let me give you example. So, suppose I describe a person who's got a headache and I tell you like, they wake up and they feel this headache for the first minute of the day. They continue to feel the headache for the second minute of the day. This goes on for 60 whole minutes, and they feel that headache for the whole hour, and then it proceeds on for several more hours after that. And they have this headache the whole day. And you hear this and you're like, "Okay, I definitely care about that, but I'm having trouble... Like, it's not hitting me in a real deep level", right? Now, if I say, I want you to picture a person who's in a box, and this box is a little bit too short for them to be able to stretch their legs all the way out. And it's a little bit too short for them to be able to stand all the way up. And so they therefore have a lot of trouble sleeping in this box. And they've been awake for a long time now, and every day, every day this box gets one millimeter shorter on every side.

0:04:00.9 Josh: Sounds like torture.

0:04:02.0 Aaron: You can like feel your blood pressure rising, right? 

0:04:07.0 Josh: I feel very claustrophobic right now, just even thinking about that. Yes.

0:04:10.4 Aaron: Like, I'm practicing deep breaths.

0:04:12.2 Josh: Yeah.

0:04:12.5 Aaron: Okay. I need to get through this with this person. You can really feel it. And so, what I'm here like saying about this topic, and I think you had agreed with this, I know I've watched you do this in trial, is that if you wanna get juror's attention, you need to focus on the way pain interferes with someone's life. Not just the fact of pain. You know, 10 out of 10 pain is like an interesting fact, but it's not really useful until you start to talk about how it's affecting someone.

0:04:44.2 Josh: Yeah. And this is kind of one of the reasons why in our practice, what we're constantly talking with our whole team about is really trying to understand the objective impacts that a person's pain is having on their actual day-to-day functioning in life. Because pain is subjective. What you might perceive to be 10 out of 10 pain, I might perceive to be 2 out of 10 pain and vice versa and so on down the road. And it can be really difficult then to quantify to a jury in many instances. Now, there are certain types of injuries and events that people go through that really strike a chord, because you can see that it was painful, someone who got burned, for example, you can see and you can feel, and the unimaginable has happened to a person, and it can be a little bit easier to quantify something when you see and are staring at the physical evidence of what a person went through in a traumatic event, come...

0:05:56.8 Aaron: Yeah. Now, you're accessing fear, right? 

0:06:00.1 Josh: Right.

0:06:00.7 Aaron: Because I've got fear of that sort of breakthrough event where maybe my teeth gets smashed or something, that like burn, falling and getting impaled. These are things that when you just hear about them that, it strikes that cord of fear in you.

0:06:16.6 Josh: Absolutely.

0:06:17.4 Aaron: So you, like, you respond.

0:06:18.7 Josh: Primal response to this, like.

0:06:21.3 Aaron: Right. Now sore back, you know, this person's back pain was two, and then it was three, and then it was four, and then it was back to two, and now it was six. Jurors can hear that all day and it's not really striking any chord with them, right? 

0:06:32.6 Josh: Yeah. Well, I mean, most people of a certain age have probably experienced some degree of nagging pain or ongoing issues. And life brings that to a lot of people. And part of our job is to help differentiate what our client might be going through from the day-to-day lives, from other jurors day-to-day experiences, because our clients weren't experiencing that. But you're right, it can be really difficult and it can be easy just to get lost in the number, like medical records, for example, a traditional way of going through and trying to demonstrate a person's pain. You would go through the medical records to your point, and you would say, all right, well, this person was in physical therapy for six weeks, so I've got 18 different medical records that talk about what their pain level was that day. And we can put it on a chart and talk about the duration and the extent and the severity of the pain. But you're right. Like if you can't see that pain, it's really hard to evoke a response of sympathy and compassion, which is ultimately I think, what it takes to get a jury to relate to a person's experience and fairly and adequately compensate them.

0:07:54.5 Aaron: Exactly. Exactly. And there's, I will say there's, so the first sort of word of advice to lawyers out there who are trying to get their clients a good recovery with the jury is to focus on those limitations things that they can see, right? They can imagine movement in space and the lack thereof and the feeling of being trapped and, how sometimes an injury traps you in your home and prevents you from going out. Sometimes an injury cuts you off from relationships. Like, you're not as good of a parent, you're not as fit as you were, seeing your friends at the gym. Maybe you're not on the soccer team anymore. All those things really kind of bring it home for jurors 'cause they can picture that and they can feel it in their own lives.

0:08:39.2 Aaron: Other thing I would introduce to this conversation is, there's a difference between that person with a headache that we'd said, okay, maybe we don't feel that pain as we hear about it. And a person with a headache who's experiencing it because a drunk driver hit them, right? So, context matters. And so, sometimes if a jury, if you have some pain in a vacuum, it might not be that interesting to a jury, but when you put it as a, put it to them as a consequence of someone's bad behavior, something that we as a community have decided is below our standard, they can react to it sort of more viscerally. Right? 

0:09:26.0 Josh: Yeah, that's true. And also, something that we've kind of honed in on over the years in trying to contextualize pain and physical impairment ultimately from our clients, is relying on people other than our client to be a historian and an advocate for the client. Like I've just found over the years, you just, a lot of people who get hurt have a difficult time really explaining how it has impacted or changed their lives. And maybe that's just kind of the nature of having gone through it and trying to rationalize a new normal. But it's very common for us to be able to ask our client, "Hey, tell us how this has impacted your life", and get one story and then ask their partner or their best friend or their kids, how they've seen it impact the other person's life, and get an entirely different texture on what the person is going through. And those are the kinds of things when you can tap into those and really tell a story about the consequences of a person's injury on their happiness and their joy of life, where jurors will respond and kind of provide that sympathy and compassion that we're ultimately helping our clients advocate for.

0:10:57.4 Aaron: Yeah. I couldn't agree more. I think the idea that your client would be up there being the whiner is bad. You don't wanna do that. You don't wanna put your client up there and ask them to emote and cry about their pain. But when you put their partner up there, or their son or their daughter, and that person when asked about their loved one's pain starts to cry. All of a sudden the jury really sees that this is real. That's proof of concept, right? 

0:11:34.1 Josh: Sure.

0:11:34.6 Aaron: Like is this pain real? Yeah, it's real. Look how it's affecting relationships. And what is the one thing we all wanna do for our loved ones is be there, support them and never cause them to cry. And so, as a juror, you're looking at that saying, "Wow, this is a big impact". And I think that's a great point, is having someone else get up there and tell the story is another way to make the pain more real. So, focus on impairment, not the pain. Contextualize it with defendant's bad behavior if you've got that available and bring in some loved ones to tell the story instead of having your client be the whiner.

0:12:14.7 Josh: Yeah, absolutely. And I think if you can execute this successfully, you're gonna get great results for your clients. And most importantly, you're gonna help your clients find their own voice and show them that you care.

0:12:29.2 Aaron: Couldn't agree more.