Noneconomic Damages, Suffering, and the Role of the Plaintiff’s Lawyer
Ellen S. Pryor
UNT Dallas College of Law
DePaul Law Review, Vol. 55, p. 563, 2006
Each year the vast tort engine processes tens of thousands of tort claims that involve pain and suffering. The participants in the tort system evaluate, articulate, investigate, strategize, and bargain over these claims. Whether the plaintiff files a claim that is settled quickly or one that takes years to complete, the legal process will be an overlay onto and will affect how the plaintiff experiences and makes meaning of his or her suffering. This article addresses one key factor in this relationship: the link between the plaintiff’s lawyer’s representation of the plaintiff and the plaintiff’s experience of suffering. The article asks if, and how, a lawyer’s representation can have a positive role, or at least minimize negative effects, as to the plaintiff’s suffering process. The article identifies the key ways in which the personal injury lawyers’ representation may intersect with and possibly influence the client’s suffering and loss process. Having identified these intersections, the article next addresses the key question of competence: is a lawyer competent to identify and to act in ways that are helpful to, or at least not harmful to, the client’s loss process? Because the answer to this is affirmative, the article explores and suggests guidelines about the plaintiff’s lawyer’s actions and counsel. These include: understanding how the representation and lawsuit can overlap with the client’s own meaning-making; respecting the difference between supporting counseling and counseling that crosses into a therapeutic model; and preparatory and explanatory language that allows the client to uncouple legal terms and standards from his or her own understanding of loss and fault.
Number of Pages in PDF File: 36
Keywords: torts, disability, professional responsibility
Date posted: May 16, 2010 ; Last revised: November 23, 2011