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LAT March/April 2008 

On the Pulse
LAT ‘s 7th Annual Technology Survey results reveal more paralegals feel the beat of technology.
By Amanda Flatten
Statistical analysis by
Darrell Patton

What’s On?
The latest in trial presentation software, hardware and gadgetry.

By Milton Hooper

Taming the Terabyte
A paralegal’s guide to reining in electronically stored information.
By Sally A. Kane

In Good Form
Increasing the Value of Mental and Emotional
Injury Cases

By John D. Winer

Table of Contents


In Good Form

Increasing the Value of Mental and Emotional Injury Cases

By John D. Winer


Looking for pattern allegations and complaints or discovery documents for a mental and emotional injury? All of the forms discussed in this article and listed in blue below are available for instant download. Click on each title to obtain an easily modifiable Microsoft Word version of every document.


In addition, over 100 forms compiled from previous articles relating to other topics are also available for instant download.


Pattern Allegations and Complaints


Discovery Documents


Although every physical and mental injury is unique, mental and emotional injuries vary more from one individual to another than most physical injuries do. The strength or weakness of a particular mental and emotional injury case usually depends on a number of factors not easily discernable in a settlement demand letter, particularly the credibility of the plaintiff. Unfortunately, the claims handling process doesn’t allow much opportunity for an insurance adjuster to assess the credibility of the plaintiff and other important factors.

Generally, it’s difficult to settle mental and emotional injury cases pre-litigation if the mental and emotional injury stems from an accident. Insurance adjusters are not attuned to mental and emotional injury cases, so these cases are nearly impossible to settle for full value on the claims level. Mental and emotional injuries don’t fit into the for­mula insurance carriers usually use to evaluate cases on the claims level. When a person suffers from a trauma-related suicidal depression that disables him or her from leaving the house, it doesn’t make too much sense to base a settlement on the medical specials.

Drafting the Complaint

Since mental and emotional injuries frequently stem from willful or inten­tional misconduct, the plaintiff’s attorneys should consider pleading causes of action that, in the right case, can lead to a punitive damage award.

By pleading punitive damages, the plaintiff may risk insurance coverage since actual punitive damages almost never will be covered by insurance. Also, a court could conclude that a defendant’s conduct is “so bad” that compensatory damages, as well as punitive damages, should not be covered by insurance. The decision as to whether or not to plead punitive damages becomes much more difficult in cases against individual defendants who don’t possess great wealth than it is in cases against large corporations. In cases against large corporations, insurance coverage is useful, particularly in enabling settlements, but not necessary for a plaintiff to receive full compensation for his or her injuries.

It’s generally very helpful, if not necessary, in mental and emotional injury cases for the defendant to have insurance coverage available. Thus, the plaintiff’s legal team must be careful, particularly in cases involving willful or intentional misconduct (which rarely is insurable), to plead the complaint in such a way as to increase the likelihood of the availability of insurance coverage.

Pattern Allegations and Complaints

These sample allegations, along with the comments that accompany them on, can provide a starting point for pleading various types of mental and emotional injury cases.

Establishing the Elements of a Mental and Emotional Injury

As soon as possible, determine whether or not the plaintiff is going to claim a mental disorder, such as a post-traumatic distress disorder, or whether the claim will be limited to emo­tional distress.

This decision must be made on a case-by-case basis. Pleading emo­tional distress limits the damage claim. On the other hand, pleading a true mental disorder may allow the defendant to engage in a discovery plan aimed at embarrassing and humiliating the plaintiff and attacking the plaintiff’s credibility.

A discovery plan should focus on determining how to discover the facts that will be necessary to prove each element of the plaintiff’s claim. The discovery necessary to prove liability depends on the cause of action underlying the mental and emotional injury claim.

Determine the most efficient manner to discover proof of the following to establish the causation and damage elements of a mental and emotional injury claim:

  • The nature and extent of the plaintiff’s injury.

  • The plaintiff’s diagnosis.

  • The plaintiff’s prognosis.

  • The effect that the plaintiff’s mental and emotional injury has had on the plaintiff’s life, including relationships.

  • Issues surrounding the plaintiff’s past and future disability.

  • The plaintiff’s inability to work in the past and the future.

  • The plaintiff’s inability to pursue educational goals in the past or the future.

  • The plaintiff’s inability to engage in former activities.

  • The plaintiff’s past or future wage loss or loss of income.

  • The plaintiff’s past and future medical and psychological expenses.

  • The plaintiff’s loss of enjoyment of life.

  • That the subject trauma caused each item of injury and damage.

  • The extent to which plaintiff suffered another emotional injury before or after this one.

Frequently, the plaintiff will want to deny the existence of any psychological symptomatology until he or she was subjected to the stressor that forms the basis for the lawsuit. The defendant will attempt to discover information that the plaintiff had significant psychological symptomatology before the subject trauma. Frequently, the defendant will serve the plaintiff with a formal discovery request asking for any injuries or symptoms prior to the incident that are similar to injuries or symptoms that the plaintiff claims resulted from the incident.

Before formal discovery, obtain and review all records that could support the defendant’s position and speak to any potential witnesses who could provide testimony supporting the defendant’s position.

Once a formal discovery request has been served, avoid responding to discovery requests regarding similar injuries with a definitive “there are no similar injuries or symptoms” as long as legally permissible, to allow the plaintiff to conduct whatever discovery he or she needs to confirm the plaintiff’s “no similar injuries” position.

Respond to this type of request by stating that, “prior to the subject trauma, plaintiff had, like most people, occasional symptoms of depression and anxiety.” This is a “safe” answer that states the obvious without conceding that the plaintiff suffered from the same diagnosable mental disorder prior to the accident, and without injuring the plaintiff’s credibility by denying the existence of any symptoms similar to symptoms that the plaintiff had since the subject incident.


Although discovery battles are expensive and time-consuming, it might be worth it to attempt to compel more detailed answers to incomplete and evasive discovery responses on the issue of causation. For example, it’s important to know if the defendant has some information regarding a pre-existing condition that the plaintiff denies, or if the defense already has completed a defense medical examination.

Propound a series of interrogatories asking the defendant to specifi­cally state his or her contentions regarding causation and damages. The defendant’s response usually will contain one of the following contentions:

  • The plaintiff is malingering.

  • The plaintiff is exaggerating.

  • The plaintiff’s claimed injuries are caused by other stressors.

  • The plaintiff’s injuries pre-exist the subject trauma.

  • The plaintiff has failed to mitigate damages.

Nevertheless, if the defendant fails to thoroughly answer the contention interrogatory, the plaintiff may be able to limit the defendant’s attempt to introduce evidence or jury instructions on the omitted contention.

Ask the defendant the evidentiary and factual support for each of his or her causation and damage “defenses.” Interrogatories that attempt to ascertain the defendant’s evidentiary support for his or her causation and damage contentions almost always will end up with evasive, inconclusive and vague answers, without any specific or useful information. The defense usually will claim that “discovery is continuing” or that it doesn’t have enough information to answer the interrogatory, or it will provide general responses such as “Information in plaintiff’s medical records indicates that plaintiff’s symptoms pre-existed the accident.” (See Special Interrogatories: Sexual Harassment Case [§6:10].)

 Requests for Admissions

Frequently a request for an admission is met with an equivocal response. However, the defendant may admit to some specific causation and damage elements. Also, the defendant may fail to respond to the request in a timely fashion, and thus provide an inadvertent admission. But the more practical reason to propound requests for admissions is to receive the expected equivocal response or denial to the request, then win on the issue at trial and obtain an award of attorneys’ fees.

Some requests for admissions dealing with special damages may be covered in a typical special verdict form. Thus, for example, if the plaintiff claims that he or she incurred psychological treatment expenses as a result of the trauma, and a request for the defendant to admit the truthfulness of this fact is denied, with a positive finding or special jury form, a court may agree that the plaintiff prevailed on an issue that was not admitted by the defendant, and award sanctions or fees.

The plaintiff may want to request that the defendant admit or deny that:

  • The plaintiff was injured as a result of the subject trauma.

  • The plaintiff was not suffering from a mental disorder at the time of the subject incident.

  • The plaintiff was not suffering from a mental disorder at any time before the subject incident.

  • The plaintiff was emotionally vulnerable to the acts of the defendant.

  • The plaintiff was predisposed to suffer severe effects from the subject trauma.

  • The defendant knows of no records that would indicate that the plaintiff complained of [list the plaintiff’s post-trauma complaints] prior to the subject trauma.

  • The plaintiff is not malingering.

  • The plaintiff was unable to consent to the sexual relationship with the defendant (in a sexual abuse case).

  • The plaintiff currently is suffering from [list each significant psychological symptom in a separate request].

  • Since the time of the subject trauma, the plaintiff has suffered from [list each claimed symptom in a separate request].

  • The plaintiff did not suffer from a personality disorder before the subject trauma.

  • The plaintiff’s personality disorder was aggravated by the subject trauma (in a case in which the plaintiff admits to a pre-existing personality disorder).

  • The plaintiff is suffering from a disorder [list the mental disorders that the plaintiff is claiming he or she suffers from since the trauma].

  • The plaintiff has required psychotherapeutic treatment as a result of the subject trauma.

  • The psychotherapeutic treatment that the plaintiff has received since the subject trauma has been reasonable and necessary.

  • With reasonable medical probability, the plaintiff will require psychotherapeutic treatment in the future.

  • The plaintiff has been unable to work for [state amount of time] as
    a result of the subject trauma.

  • The plaintiff was disabled for [state amount of time] as a result
    of the subject trauma.

  • The plaintiff is permanently psychologically disabled as a result
    of the subject trauma.

  • The plaintiff has not been able to attend school for [state amount of time] as a result of the subject trauma.

  • The plaintiff’s divorce, at least in part, has been caused by the subject trauma.

  • The plaintiff’s need to take psychotropic medication has been caused by the subject trauma.

  • Tortfeasor was in the course and scope of employment when the injury occurred. (See Requests for Admissions: Age and Sex Discrimination in Employment Case [§6:20] and Requests for Admissions: Sexual Harassment Case [§6:21].)

Importance of Responding Carefully

It is harder for plaintiffs than it is for defendants to make equivocal responses to requests for admissions on injury and damage issues in mental and emotional injury cases.

The defense may be able to claim insufficient information, but the plaintiff should have access to all the necessary information regarding his or her pre-trauma versus post-trauma mental condition.

However, mental and emotional injury cases are “shifting sand” cases and it’s generally advisable to avoid unequivocally committing to a position regarding pre-existing condition, causation or damages until the “ground has settled.” Thus, wait as long as is legally and ethically possible before fully committing to an admission or denial of the subject matter of pre-existing condition, causation and damages.


John D. Winer has litigated over 1,000 cases involving psychological injury, trying over 20. He has been invited to join the American Board of Trial Advocates and The College of Master Advocates and Barristers. He is the author of “Proving Mental and Emotional Injuries” ( or (800) 440-4780), from which this article is excerpted.


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