Initial evaluation: Attributes of a strong case

Mental and emotional injury cases involve risk

A competent mental disorder attorney can differentiate good cases from bad ones. Psychological injury cases usually involve an enormous amount of emotional and financial risk. This risk is something the lawyer will consider when making a decision to accept or reject a case. It does neither you nor your attorney any good if, after all of the hard work and emotional and financial cost of a psychology injury case, you end up losing (and being required to pay defendant’s costs), or walking away with a minimal or modest settlement.

If the attorney turns down your case, and you are like many people with a severe psychological injury, you will feel dejected. You may feel that the attorney is your last hope and, despite the attorney’s warnings to the contrary, that you will be able to handle the stress of the litigation and that you don’t really care if you obtain a good financial result. But it is important to realize that plaintiffs’ attorneys are lawyers making business decisions. They are not mental health professionals who can treat psychological wounds. The question the attorney must answer in evaluating a case is whether the potential plaintiff will be in a better or worse position, both financially and emotionally, at the end of the litigation. The answer does not necessarily reflect how needy or deserving the person might be.

A client initiating a personal injury case must be able to withstand the demands of litigation. An aggressive defense attorney can start conducting invasive discovery, which may further break-down the emotional well being of a client who is already dealing with a mental injury. The plaintiff’s attorney must make an independent assessment of the client’s ability to withstand aggressive attack, the emotional resolve of the client, and the likelihood that the litigation will be emotionally demanding.

As long as both attorney and client are aware of all of the potential risks in pursuing a mental and emotional distress claim and together they are up to the challenges that will be necessary to make the case successful, then it pays to move forward with an evaluation of the legal and practical merits of the claim. An attorney who is familiar with the risks and unique aspects of mental and emotional injury litigation can differentiate a strong mental injury claim from a weak one.

Attributes of strong mental and emotional injury cases

Presence of a physical injury

If a physical injury is present, it bolsters the credibility of plaintiff’s entire claim and allows for the possibility that the trauma, the physical injury, or both, led to plaintiff’s mental and emotional injuries.

Moreover, the presence of a significant physical injury is one of the factors that meets the “stressor” requirement of a post-traumatic stress disorder.

Nature of the defendant

The plaintiff’s attorney evaluating a psychological injury case will consider the “nature” of the potential defendant(s). Viable cases against large corporations, particularly unpopular large corporations, will typically result in larger financial recoveries than cases against nice, kind individuals.

This does not mean that a plaintiff cannot prevail in a psychological injury case against an individual defendant, though it is more challenging for plaintiff’s attorney to present the case. Moreover, not all large mental and emotional injury awards have been against large corporations. Some of the very largest verdicts have involved cases in which a psychological injury stems from sexual harassment or other abuse perpetrated by an individual.

There are variations in the viability of the case against an individual depending on the circumstances of the trauma. For instance, individuals whom society licenses to care for vulnerable and fragile members of our population, such as psychiatrists and eldercare workers, may also be exposed to very large psychological injury verdicts if they breach their duty, particularly if they do so for their own gratification.

Provability of the injury

Some mental and emotional injuries are easier to prove than others. For example, in a post-traumatic stress disorder (PTSD) case, it will be relatively easy to prove a psychological injury if:

• plaintiff has been exposed to a severe psychological or physical stressor that would qualify under the established diagnostic criteria for PTSD;
• plaintiff’s case meets all of the remaining diagnostic criteria of PTSD (numbing, avoidance, and arousal); and
• plaintiff was clearly not suffering from the same or similar symptomatology before the subject trauma.

Post-traumatic stress disorder is by no means the only mental disorder or mental or emotional injury that can stem from trauma. Almost any mental disorder can be caused or triggered by trauma and the ones that can not, such as disorders with a biological component (like bipolar disorder), can have “episodes” triggered by trauma. Moreover, all disorders including personality disorders can be exacerbated by trauma.

If plaintiff’s symptomatology fits into any mental disorder category and the symptoms that constitute that disorder were not present, or not present as strongly before the subject trauma, the psychological injury is more easily provable. Even if the trauma exacerbated a pre-existing mental disorder or personality disorder or both, the mental and emotional injury may be relatively easy to prove as long as there is an objective increase in symptomatology associated with the disorder.

A number of “proof” factors can increase the chances of a plaintiff prevailing on a mental and emotional injury claim. These proof factors include:

1.  Psychological testing

Psychological testing is a procedure by which a trained clinical psychologist provides plaintiff with a battery of paper-and-pencil tests. Some of these tests are “objective.” If plaintiff scores well on the validity scales, and if the rest of the test results suggest psychological distress consistent with a new injury as opposed to long-time personality difficulties, then the test results will tend to prove plaintiff’s mental and emotional injury.

The psychological test battery normally includes certain “projective” tests that go beneath the surface and bring out “unconscious” material. The projective tests may tend to verify an emotional and mental injury and, in certain circumstances, the cause of the injury because certain test results may indicate trauma-related symptomatology.

Psychological tests alone will not prove or disprove an injury caused by a given trauma. However, in cases in which plaintiff’s credibility is at issue (most mental injury cases) and cases in which the defendant denies that the trauma ever occurred (e.g., he said/she said sexual harassment or battery cases), the plaintiff’s lawyer can find psychological testing to be a very useful way to objectify and establish an injury, and to establish plaintiff’s credibility.

2.  Before and after witnesses

It is very helpful if people who knew plaintiff before and after the subject trauma will be able to testify that plaintiff changed in demonstrable ways after the trauma. Close friends and family members can provide useful testimony in this regard. The testimony of an unbiased witness such as a teacher, clergy member, coach, or doctor who was treating plaintiff before the accident for unrelated symptoms may be even more valuable.

3.  Will the jury see the plaintiff as someone who has been traumatized and injured?

If plaintiff is credible and looks injured when he or she testifies, this will usually help prove a mental and emotional injury claim as long as plaintiff’s presentation:

• is consistent with the expert testimony and lay testimony regarding the nature and extent of the mental injury,
• is not artificial, and
• is not exaggerated.

Some people have an easier time letting down their defenses when testifying and letting their real emotional pain come out and be seen by a defense attorney at deposition or by a judge and jury at a trial. These people will have an easier time revealing to the jurors the fact and severity of their injury.

In contrast, an inability of plaintiff to demonstrate his or her feelings may be part of his or her personality characteristics or the mental disorder itself. A skilled psychological expert may be able to explain this phenomenon to a jury. The experienced mental claims lawyer will want to make sure that the jurors understand why this particular plaintiff may not be able to demonstrate the extent of his or her suffering through his or her own testimony. To accomplish this goal, the plaintiff’s lawyer would call plaintiff to testify after expert witnesses and other lay witnesses, who will have explained plaintiff’s condition to the jury.

Severity of the stressor that triggered the injury

A psychological injury case is far easier to prove if there is a significant stressor. Although the absence of a severe stressor is by no means fatal to the case, a mental and emotional injury case that involves a stressor that would cause significant distress in “almost anybody” (example: a life-threatening event) is easier to present. A case involving a diagnosis of post-traumatic stress disorder, for example, appeals to the common sense of jurors more than a case without a severe trauma.

Nevertheless, even objectively minor traumas may have very significant consequences to particularly vulnerable plaintiffs and cause even more significant injuries than life-threatening traumas.

Vulnerability of plaintiff

All people react to trauma differently, based on their life experience, genetics, and personality make-up. However, in most mental and emotional injury cases, the case is usually more compelling when the plaintiff’s attorney and experts are able to point to the particular vulnerabilities of the plaintiff that made him or her more susceptible to the subject trauma.

Usually, vulnerabilities stem from childhood traumas that caused plaintiff to develop certain psychological defense mechanisms. Adult life situations can also make a person vulnerable to traumas. The presence of drug and alcohol problems, bad marriages and relationships, and lack of an adult support system, can increase a person’s vulnerability.

It is also possible for a person to be “too vulnerable” to trauma (with the exception of sexual abuse/harassment cases in which perpetrators seem to pick on very vulnerable people). A plaintiff who is so vulnerable as to being dysfunctional in almost every area of his or her life before the subject trauma, and who has suffered from significant mental disorders prior to the subject trauma, may not be able to overcome that history and convince a jury that his or her current troubles are due to any trauma, particularly an objectively minor one.

The vulnerable yet high functioning pre-trauma individual is often a compelling plaintiff in a mental and emotional injury case, whether or not there is a major or minor trauma. The vulnerability explains plaintiff’s severe reaction to the trauma and the high pre-trauma functioning level provides a strong baseline to assess damages flowing from post-trauma condition.

Clear evidence of causation

Plaintiff must prove that the subject trauma “caused” a mental and emotional injury. That is, plaintiff needs to be able to establish a viable psychodynamic mechanism that explains why the subject trauma caused a mental and emotional injury. This must usually be accomplished through expert testimony.

If a psychological expert can develop a common-sense and reasonable explanation for how the subject trauma interacted with plaintiff’s vulnerabilities to break down plaintiff’s psychological defense mechanisms and “cause” a mental and emotional injury, and if plaintiff was not too dysfunctional prior to the trauma (except in sexual abuse/harassment cases), plaintiff will have an easier time meeting the causation standard at the time of trial or arbitration.

Nature of the case

Mental and emotional injuries can arise from virtually any type of tort or wrongdoing. However, some types of wrongdoing are much more likely to lead to a successful mental and emotional injury claim than others. Mental and emotional injury claims that stem from sexual abuse and sexual harassment have a higher chance of success than most other forms of wrongdoing. In a typical product liability case, plaintiff is less likely to recover damages for a strictly psychological injury. Similarly, in a medical negligence case, absent a physical injury, a plaintiff is unlikely to recover significant damages for strictly mental and emotional distress. However, mental and emotional injury claims against psychotherapists are more likely to be successful.