If you’re using our online damages calculator to assess what your employment discrimination case is worth, you might be wondering how much you can convince a judge or a jury to give you for your mental and emotional anguish, also known as pain and suffering damages. As we mentioned in our last post, in a physical injury case, your lawyer can produce a “Day in the Life” video that explains how an injury has changed your life. But how do you show what you’ve been through when you haven’t been physically injured?
The best way to maximize the value of this kind of intangible damage is through detailed, specific, colorful testimony. The fact-finder should hear from you as well as other witnesses who can describe exactly what happened to you. For instance, if you were devastated and humiliated by being fired, you need to make that experience come alive for the jury. How do you do that? Let’s look at a couple of examples.
The Scenario
Our plaintiff is a 55-year-old man named Jerry. Jerry worked in the headquarters for a national delivery service that delivers food wholesale to restaurants across the United States. Jerry was with the company for 35 years, working his way up from being a truck driver all the way to management, where he oversaw operations for the southeast U.S.
Then the company hired a new CEO who said that he would bring “new blood” into the company and clear out some of “the dead wood and beer bellies around here.” Soon after, Jerry and a number of other workers, mostly with years of strong work records, were hauled into HR and warned they were “underperforming.”
Over the next three months, these workers were fired and offered paltry severances in exchange for waiving any employment claims they had. Most of them took the deal. Jerry’s wife, a long-time paralegal, urged him not to waive his claim. He and three other workers refused the deal and started an age discrimination lawsuit against the company.
With Jerry’s case in mind, consider the difference between these two types of testimony.
Example 1
Attorney: Earlier you testified that you were fired on October 2 at around 3:30. Is that right?
Jerry: Yes, that’s right.
Attorney: Tell me how you found out you were fired.
Jerry: HR called me down to a conference room. When I got there, my boss was there.
Jerry: They pretty much thanked me for my service to the company. They said they were sorry but for financial reasons, they had to let me go.
Attorney: How did the meeting end?
Jerry: They told me to go upstairs and get my belongings. They gave me 20 minutes.
Attorney: How did that make you feel?
Jerry: [without much emotion] Bad. I’d been at the company for 35 years. Hard not to feel bad about that. I also felt wronged. I’d done nothing but good work for that company and then I get fired only because the new CEO’s making a statement.
That sounds unfortunate, right? The guy loses his job after 35 years. That’s got to be tough. But could you feel what he felt? Not really, I bet.
Now, compare it to this version.
Example 2
Attorney: Earlier you testified that you were fired on October 2 at around 3:30. Is that right?
Jerry: Yes, that’s right.
Attorney: How did you remember that it was at 3:30?
Jerry: I mean, it wasn’t every day that I got a call to meet with HR, so there’s that. And it was also the time that I always got coffee with Jim, a buddy of mine at work.
Attorney: You got coffee every day at 3:30?
Jerry: Pretty much, yeah. We’d go down to the cafeteria. The coffee was terrible, but it was cheap.
Attorney: How long had you been having afternoon coffee with Jim?
Jerry: Gosh, 25 years or so. Hard to believe.
Attorney: Let’s go back to when you had that meeting with HR. Where did the meeting happen?
Jerry: In a conference room next to the executive suite.
Attorney: Your boss was there?
Jerry: Yes.
Attorney: What did he do during the meeting?
Jerry: Nothing. He kept looking down at his hands. It seemed like he was trying not to look at me. Barbara from HR did most of the talking.
Attorney: What did she say?
Jerry: I don’t remember much of what she said. I just remember the gist of it: You’re fired.
Attorney: When Barbara was talking to you, what was she like?
Jerry: I just remember thinking how young she was. Barbara was relatively new at the company. Maybe she was late twenties or so.
Attorney: Was she stern, caring, happy?
Jerry: Oh, I see. I could tell that she was trying to be sympathetic or at least to look that way. Maybe she was, I don’t know. It just seemed like I was being fired by a child.
Attorney: How did you feel?
Jerry: Shocked. Humiliated.
Attorney: Once the meeting was over, what was the first thing you did?
Jerry: I got my stuff, got in my car, and went home.
Attorney: I mean the very first thing you did.
Jerry: I went upstairs to get my stuff, like they told me to.
Attorney: Was there anyone with you?
Jerry: Yes, Tim, the security guard.
Attorney: What did he do?
Jerry: He said he was sorry. He said that it was just his job and that they told him he had to escort me out. I told him that was okay, that I understood. I remember he kept clearing his throat and shifting his weight from one foot to the other.
Attorney: What did you do while he was standing there?
Jerry: I was clearing off my desk.
Attorney: What kind of stuff was on your desk?
Jerry: Mostly just personal stuff.
Attorney: Like what?
Jerry: Let’s see. I had a picture of my kids. My calendar—I still use a paper one. My jacket. I had this funny looking hula girl. My wife gave it to me one time and said it was probably the closest we’d ever get to Hawaii.
Attorney: Where did you put your personal belongings?
Jerry: Tim had given me an empty box. Yeah, I remember thinking that they really do give you a box.
Attorney: Once you had your stuff, what did you do?
Jerry: I got in my car.
Attorney: Where did you have to go to get to your car?
Jerry: I walked down the hall, got in the elevator, and walked out the front door.
Attorney: Was Tim with you?
Jerry: Yes, he walked me to the door.
Attorney: Did anyone else see you?
Jerry: Well, I had to walk by the breakroom. It has a bunch of windows. I could tell there were people in there. But I tried not to look.
Attorney: How did you feel?
Jerry: Honestly, I was sort of numb.
Attorney: Other than Tim and whoever was in the breakroom, did you see anyone else before you got to your car?
Jerry: Yes, I saw Joanne from accounting.
Attorney: What did she do?
Jerry: She looked at me and sort of stopped short, like she couldn’t believe what she was seeing.
Attorney: Did she do anything else?
Jerry: She just came up and hugged me. And then she started to cry. I’ve known Joanne since high school.
Attorney: What did you do?
Jerry: I hugged her back and said, “Don’t worry, honey. I’ll still see you at church.”
Attorney: How did you feel?
Jerry: I mean, sad.
Attorney: If people had seen you, would they be able to tell that you were sad?
Jerry: [Pausing] Yes.
Attorney: How so?
Jerry: I started to cry too.
Attorney: After she hugged you, what did you do?
Jerry: I walked out the front door and got in my truck.
Attorney: Were you still crying?
Jerry: Yes, but I was trying not to.
Attorney: What did you do next?
Jerry: I drove home.
Attorney: Did you go straight home?
Jerry: Um, no. No, I didn’t.
Attorney: Where did you go?
Jerry: I pulled over to the side of the road for a while.
Attorney: Why?
Jerry: I didn’t think that it was safe to drive.
Attorney: Why?
Jerry: Because I was crying like a damn baby.
You get my point. Now the jury has a vivid picture of how Jerry felt when he was fired. In which scenario do you think the jury is more likely to award significant emotional distress damages? Exactly.
The Moral of the Story
So, when you think about your own situation, think about the details and be specific. What was your life like before your employer fired you? How about after? If people were following you around with a camera, what would they have seen before and after you were fired?
(Note that, although there was an evidentiary basis for all of these questions, there are several places in that narrative where the company’s lawyer might have objected.)
Of course, not everyone’s experience is this traumatic. You might have, after a brief period of shock and anger, found it liberating that you were fired. There is certainly nothing wrong with that. Just don’t expect much in the way of emotional distress damages!
One other point: be careful not to exaggerate anything. You don’t want the jury to think you’re making anything up or being less than completely honest with them.
Summing It Up
Clear, detailed, specific testimony that lets the judge or jury really understand what you suffered is critical to maximizing the amount of damages you can receive for emotional distress. If you need help figuring out what to do next, talk to an attorney to see how we can help you.
