The biggest intangible dealt with by personal injury lawyers in settling or trying a personal injury case is noneconomic pain and suffering damages. These damages defy ready conceptualization and the law provides little in the way of help to jurors who make the final call.
In many of our personal injury cases we have used per diem reasoning to juries to articulate pain and suffering damages. Per diem arguments give some tangible basis for a pain and suffering award. In psychobabble speak, per diem arguments are a form of anchoring — the cognitive phenomenon of the tendency of people to make estimates with a value in mind. After an anchor is established, there is a bias toward that value to the exclusion of other evidence.