Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 10. Damages
American tort law was the organization and mobilization of the trial lawyers into a lobbying and
trade association to be reckoned with. No one played a bigger role in the creation of the modern
trial bar than a flamboyant and energetic lawyer in post-war California named Melvin Belli:
The King of Torts, as Life Magazine dubbed him in 1954, was a man of scarlet silklined
suits, of multi-colored Rolls Royces, of courtroom theatrics and Hollywood
hijinks. . . . Belli’s campaign began in 1951, when he published a long article in the
law review of his alma mater, the law school at the University of California,
Berkeley. The article, titled “The Adequate Award,” aimed to raise the value of
personal injury cases. Professional baseball players earned $100,000 for a season’s
work. Racehorses fetched $300,000 on the market. Art and fine violins sold for
hundreds of thousands. And yet, Belli contended, the value of personal injury
awards lagged behind the increasing cost of everything from haircuts to housing.
Front and center in Belli’s efforts were pain and suffering damages. . . . Damages
for intangible injuries such as pain and suffering, Belli observed, “depend upon
counsel’s imagination.” Their value turned on the “vividness” of the trial lawyer’s
portrayal of the pain of his client. By using the courtroom for the theatrical
reconstruction of the pain and suffering of the victim, the trial lawyer could push
the value of pain ever upward. . . .
Belli . . . instruct[ed] his audiences in an elaborate taxonomy of kinds and types of
pain their clients might be suffering. He distinguished “physical pain and suffering”
from “mental pain and suffering,” which in turn he distinguished from
“embarrassment, ridicule, and humiliation,” each of which he insisted could be an
independent basis for intangible damages without an impermissible double
counting. Belli became an ersatz expert in the budding science of pain
measurement, and encouraged his peers at the bar to do the same. He painstakingly
described “the pathways of pain,” which he likened to an elaborate telephone system
managed by a central operator’s station in the thalamus.
In the decade after Belli and the Association of Trial Lawyers of America
transformed the practice of personal injury law, the size of damages awards for pain
and suffering injuries increased dramatically. Belli himself reported the new trends
in . . . the massive, multi-volume Modern Damages, published with pocket part
updates to keep plaintiffs’ lawyers around the country informed on the latest
damage verdicts and settlements.
John Fabian Witt, The Political Economy of Pain, in MAKING LEGAL HISTORY: ESSAYS IN HONOR
OF WILLIAM E. NELSON 235 (Daniel J. Hulsebosch & R.B. Bernstein eds., 2013).
The performance of the trial bar in the courtroom cannot be the complete story of the rise
of nonpecuniary damages for pain and suffering, of course. For we know that trials are a rare
event in personal injury law. They are virtually endangered today, but they were rarities even a
half century ago when the trial bar was coming into its own. Alongside a trial practice, as the next
excerpt suggests, came a concerted effort to turn the pain and suffering component of tort
damages into a more important part of torts settlements. Most of all, this required that the
plaintiffs’ side of the tort dispute process have access to the same kinds of economies of scale and
information that the defense had been able to access:
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