The Role of Emotion in Personal Injury Litigation

The Role of Emotion in Injury Litigation 

One very important factor in how insurance companies evaluate injury claims involves emotion.  If the plaintiff is likely to evoke strong sympathy from the jury, that is a case the insurer will want to settle.  It is the lawyer’s job to convince the insurer that this is exactly what is likely to happen.  But it’s a delicate dance.  Overdo it and the case loses credibility.  Underplay the emotion and the case will never settle for “full value.”

Here is a recent example from a case I am handling.  “Carrie” was badly injured in a car collision.  During our preparation session the day before her deposition she cried twice.  I was totally convinced that her tears were heart felt and indicative of a life that was dramatically changed by the momentary negligence of another motorist.  I noticed that her emotion was most raw when it came to describing how her ability to care for and play with her son was affected.  I made a mental note to myself.  I also considered the possibility that “Carrie” was achieving some catharsis then and there and would have no emotion left over for her deposition the next day.

At her deposition, the defense would evaluate “Carrie” carefully to assess the risk she posed to the insurance company’s assets.  “Carrie” did a great job at her deposition.  She came across as truthful and earnest.  But her eyes were bone dry throughout.  I was concerned that the settlement negotiations would be adversely affected by this fact.  I was concerned that the pressure of the situation created a guardedness in her that was blocking her emotion.

And so toward the end of the questioning I began to formulate a single question that I hoped would evoke the emotion from “Carrie” that flowed so freely the day before.  I felt bad about having to do this.  No one likes to cause pain to someone they like.  I stated the question this way.  “Carrie (I made sure to use her name and to pause after I said it).  One question. (I paused again.)  How do you feel about how your relationship with your boy, “Johnny”, (pause), has changed since the accident.”

The tears absolutely poured from her eyes.  No further questions were needed.  The defense lawyers feigned disinterest, but I know that even in the heart of a cynical, jaded insurance defense lawyer lies a heart that is concerned with the insurer’s bottom line.  We’ll see how it turns out when the settlement negotiations heat up.  Stay tuned.


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