By Hon. (Ret.) Ken E. Adair
Tell Jurors What They Need to Know About Chronic Pain
Video Transcribed: You have a personal injury client, an injured client that is dependent on pain medicines and suffer from and have been diagnosed with chronic pain. And I’m not going to give the medical definition, but chronic pain is basically a person that has an injury that is going to result in pain for the rest of their life.
Sometimes they’re diseases that can cause that or arthritic conditions that are genetic thing can cause that. Sometimes injuries, especially to the spine or certain joints, can cause a permanent injury that is going to cause pain for the rest of their life.
So if you have a client that is diagnosed with chronic pain and is under pain management, we have to understand and respect that society doesn’t look favorably upon the pain management industry. I’ll use the word industry.
There is a cottage industry, if you will, of pain management clinics that are set up. A lot of them deal with chronic pain. And a lot of people get scared away when their clients appear to be dependent, if not addicted, to pain medication or pain management.
If you suffer from chronic pain, it doesn’t feel like an addiction. It feels like dependency like we’re dependent on air, and food, and water. We’re not addicted, but we’re dependent. I’m not trying to make excuses about substance abuse. That’s a very serious topic.
If you have a client that has been diagnosed with chronic pain, you need to know how to talk to a jury about chronic pain. The first time I ever did that … And I had a client I was very concerned about.
We had a very nominal offer because of her chronic pain and the fact that she was dependent on pain medicines. Very nice lady, very conservative, very religious, very devout Christian lady, who wasn’t very pleasant, which is not unusual for people like her. She wasn’t a pleasant person.
I asked the jurors. I actually told the jurors upfront. I said, “When I first met my client …” Don’t be horrified, but I said, “When I first met my client, I didn’t really care for her much because she was not very emotional, not very articulate, wouldn’t describe her pain.” The look on the juror’s faces was they were mortified that I was talking about my client this way.
But, people that suffer from pain kind of have a distant, indifferent numbness about them. And I was concerned that the jury was not going to like my client because my client wasn’t likable in that way that you want clients to be likable.
So, I asked the jury panel, “How many of you have any loved ones or close friends that suffer from chronic pain?” I had seven hands come up. I asked those that raised their hand, “I don’t want any detail. I don’t want anything that’s going to embarrass you or embarrass anybody. But, can you tell me whether it’s a relative, or a close relative, or a dear friend, or just an acquaintance?”
I went through, and this one young lady, very young lady, her voice was cracking, and she said, “It’s my father.” So naturally, she was the one that I was going to explore the issue with. I asked her, “Was it from an injury, work injury, car wreck, or was it something else?” She said it was a work injury.
And I said, “Was he different before the injury then he is now?” she said yes. I asked her how so, and she talked about yard work, playing with the grandkids, horsing around, being fun, being exciting, being the life of the family gatherings, still full of life, and entertaining within the family. That’s the way he used to be, and he’s not that way anymore.
I asked her if he took pain medicines if she didn’t mind answering that question. She said he does. I asked her, “Does he like taking pain medicines?” She said, “No, of course not.” I said, “Well, why do you think, if you know if you have an opinion, why do you think he takes him?” She says, “Because he either has to be miserable or he has to be kind of dull.” I thanked her for her answer, and I knew it was difficult.
She was a little teary-eyed through this. I said, “What a horrible choice to have to make, to be miserable or dull, and not being able to interact in the way you’re used to.” Then, I stated to the jury, “You see how I might’ve been a little hard on my client.” So, I redeemed myself, but I can assure you that the looks of horror on the jury’s faces was extreme when I told him upfront that when I first met my client I didn’t like her.
Do not shy away. Do not be afraid of one of the consequences. If you look at the risks of an injury, one of the risks is you might have to take pain medicine. If you take pain medicine, you might become dependent. You become dependent, you might become addicted.
Don’t be afraid of those things. It’s no different than a piece of bone marrow breaking loose from a broken leg bone and getting in the bloodstream and lodging in your lungs and killing you. It is a known risk of an injury, and these issues are no different. Don’t shy away from them, and don’t be afraid to talk to the jury about it.