I’m running with Nala. Up near Kerry Park. The “Sleepless in Seattle” vantage point. We are a little late. Trying to get in run before heading to airport. To Austin TX to visit Noelle and JonJon for the weekend. Turn up a street to go a shorter route than usual. Nala’s leash hooks on a truck bumper. She jerks one way. I jerk the other. Down I go. Slow motion. Watch as my right knee jags to the left and back to the right. Fortunately I run slow.

Nala is okay. She wants to know what happened and pushes me with her nose. Let’s go. But I can’t. We walk home. Grateful this did not happen even farther away. Find an ace bandage and bag of ice. Head to airport. Elevate knee. Take advil. The flight attendant brings me a baggy of ice to fill the bag. Cross fingers the knee isn’t going to be hideous.

In fact it isn’t as bad as it looked like it was going to be. Here I am a month later and it is doing pretty well all things considered (i.e. it wasn’t the best knee to begin with).

As I contemplate my puny inconveniences over the less than stellar knee, I think about my clients. We just finished the body diagram for one young man still in his 20s - there is not enough room on the page to list all of his injuries. Then there are those who only have one injury - but it is horrible enough to end their life.

The first fifteen years I was a plaintiff lawyer, I spent trying to not say or use the words “pain and suffering.” Jury focus group studies and real life experiences with juries indicated this was a divisive topic. If you wanted to get straight to the heart of what juries really thought during voir dire, all you had to do was mention that phrase. Instead, we substituted words like: injury, or serious injury, or disability. Anything to avoid saying: pain and suffering. I went so far as to try to erase those words in the jury instructions, explaining to the Court how triggering they were because they were associated with insurance propaganda of greedy plaintiffs and their greedy lawyers getting rich off of pain and suffering.

But life is not static and neither is trial practice.

As the world begins its second year of covid related suffering... As young people who embrace the concept of emotional distress increasingly comprise juries... As plaintiff attorneys get better at demonstrating the real life impact of injuries … The term “pain and suffering” has regained its place of honor on the scale of what it means to be a human being whose life has been forever changed because of the preventable misconduct of another.

Instead of excusing away the term. Now I lead with it.

Photo: bad knee post truck bumper run incident with Nala, at a hotel in Austin