I recently had a disability hearing which involved a client with a leg injury. The judge asked her to describe the injury, and the exchange went like this:
Client: “All of a sudden, it felt like I had been shot in the leg.”
Judge: “Have you ever been shot in the leg before?”
Client: “No.”
Judge: “Then how do you know what it feels like?”
This exchange seems to capture some of the inherent difficulty in proving pain to someone else. We can’t transfer our pain to another person so they can experience it for a moment or literally have them walk a mile in our shoes. As lawyers, our goal is to prove our contentions with evidence. Usually (but not always), one of our contentions is that our client experiences great physical pain.
A passage from Indianapolis author John Green The Anthropocene Reviewed got me thinking about the difficulty involved with proving pain during a disability hearing: But I think it is impossible to communicate the nature and severity of such pain. As [Elaine] Scarry puts it, “To have great pain is to have certainty. To hear that another person has pain is to have doubt.” Hearing about pain that we do not feel takes us to the limits of empathy, the place where it all breaks down. I can only know my pain, and you can only know yours.
We’ve tried all sorts of ways to get around this axiom of consciousness. We ask patients to rate their pain on a scale of one to ten, or we tell them to point to the face that looks most like their pain. We ask them if the pain is sharp or dull, burning or stabbing – but all of these are metaphors, not the thing itself. We turn to feeble smiles and say that the pain is like a jackhammer at the base of the skull or like a hot needle through the eye. We can talk and talk about what the pain is like, but we can never manage to convey what it is. After reading this, I can just hear our judge asking someone, “Have you ever had a jackhammer on your skull?” or “Have you ever had a hot needle through the eye?” This kind of questioning seems unfair. It’s difficult to describe pain, so people have to do the best they can.
At Keller & Keller, our personal injury lawyer team can work with you so that any decision-maker involved with your case understands your pain as much as possible. Despite this difficult exchange with this judge, we provided him with medical records and physician opinions, which ultimately led him to see why our client was disabled and reach the desired result – a finding of disability.
Here are some other tips you can use to explain your pain to help others understand it:
Communicate Clearly With Doctors and Other Medical Professionals
What you say to them will end up in the medical records, which constitute very important evidence. Pain management professionals may prescribe medication or perform procedures like injections as they try to relieve pain. Don’t be afraid of hurting their feelings if these measures haven’t been as effective as you would like. Don’t feel like you need to be polite and respond with “fine” or “good” in response to a standard “How are you?” greeting. If this is what the doctor says when they walk in the room, it’s not necessarily just a pleasantry; they may be genuinely inquiring about your condition. These days, doctors have so little time to spend with patients they may not have time for pleasantries.
On top of this, it’s natural for medical professionals to want to feel like their treatments are effective and make themselves look good in medical records. Therefore, positive feedback is going to end up in the medical records. Many times, I have seen medical records from some of the sickest, most unfortunate individuals who state, “Overall, doing well.” This may be relative, but someone evaluating your case may not see it that way. If you are still in pain, do your best to make this clear to the doctors.
Think Outside The Box When Asked About The 1-10 Pain Scale
I liked seeing John Green’s disdain for the 1-10 pain scale because I hate it when judges ask this question. Did anyone ever win a case because of how they answered this question? It’s highly doubtful. It’s much more likely to put a nervous client in a position where they offer an answer that either understates their pain or makes the judge think they are exaggerating. Nonetheless, you may have to play this game. The 1-10 questions may come from a judge, or they may come from your doctor. My advice would be to do your best to give a number but then go beyond that. You can talk about how the pain impacts your ability to function in daily life– does it prevent you from doing household activities like cooking or cleaning? Does it cause you to neglect self-care, like showering or getting dressed? Can it be completely incapacitating?
Do Some Reflection and Writing![The Feet of A Skeleton]()
You will be in the best position to communicate your pain if you have reflected on it. If you have the discipline and perseverance to create a pain journal and document your pain regularly for several weeks or months, this can be provided to someone considering your case. But of course, it can be difficult to keep up with something like this when life presents many demands on your time, and pain itself may interfere with your ability to do this kind of regular journaling. If that is the situation, it could still help to sit down and write about your pain.
Clients sometimes ask me if they should make notes to take to a hearing and assist them in providing testimony. I say this is not necessary because I will come to the hearing with an outline of the important topics and ask you questions you should be able to readily answer about how pain impacts your daily life. However, I don’t discourage anyone from sitting down and making some notes, mostly because I think the process of doing this will be a good reflective exercise that puts the client in the best position to provide thoughtful answers to my questions. I think this provides much more value than actually having the notes in front of you during the hearing.
Be Confident That You Are the Best Person to Talk About Your Pain
You can rest assured that the injury lawyer team at Keller & Keller will be doing everything possible to prove your case, including gathering documentary evidence, questioning experts, and making legal arguments. However, when we speak on your behalf, that’s exactly what it is –a legal argument. It doesn’t count as evidence. What you say about your pain is evidence because you have personal knowledge of how it affects you. Sometimes clients will tell me they want me to do all the talking. I understand this, but the only way to present evidence of your personal pain experience is with your testimony. Other clients may want a spouse or other family member to testify because they think that person is more articulate or better with words. But again, this person does not have personal knowledge of your pain. But don’t worry; we will work with you to make any testimony you offer as effective as possible.
Share Your Insight Into Your Pain
It’s often persuasive to show just how much someone has done with attempts to relieve their pain. This way, we can show what you have learned and that even though you have done what you can to deal with your pain, it is still very limiting. If you have participated in physical therapy and learned exercises that have been helpful, you can share this. You could talk about any trial and error process as doctors have tried to find the best medications to relieve your pain. If you have participated in mental health treatment and gained insight into the relationship between pain and emotional distress, this can be presented. We could also explain how stress may exacerbate an inflammatory condition. Generally, we want to show how your impairments affect your daily life, so any changes you have made because of your pain can be relevant. You may have given up things you used to enjoy doing or asked a family member to take over some of your previous responsibilities at home. All of this is relevant.
When explaining pain, there is no one best way of doing it, nor is there any one-size-fits-all solution to the problems inherent in trying to get someone else to feel your pain. I hope you’ve never been shot in the leg, had a jackhammer going at the base of your skull, or experienced a hot needle going through your eye. If you haven’t, I would advise avoiding these analogies and instead using the tips in this article. As much as I hate to admit it, the judge may have had a point.
