The Texas Supreme Court is once again “tinkering” with the proof necessary to recover mental anguish damages. Although the case involved defamation, in Hancock v. Variyam, the court revisted the necessary amount of proof to support damages for mental anguish. This is important to employment cases because they frequently involve an attempt to recover mental anguish damages and frequently fail for insufficient proof. The court has in the past set forth the requirement that in order to recover mental anguish a plaintiff must show evidence of a substantial disruption in daily routine or a high degree of mental pain and distress. Also, the plaintiff must additionally show the nature, duration, and severity of the mental anguish. The court had laid down these requirements in earlier cases. However, in the Hancock case the court showed in a negative manner how the plaintiff had not provided enough evidence of mental anguish. If you are a lawyer representing plaintiffs you should put a copy of the case in your notebook in order to review all of the necessary requirements with your client to determine if the mental anguish claimed will pass the rather high standard of the court. Also, you should talk with your client about the level of necessary proof so that the appropriate level of proof and words may be presented at deposition and trial, if the proof and words are true. Many times the appropriate emotions and interference with the plaintiff’s life is present but is not effectively presented because of insufficient preparation or just the inability of the client to express the level of mental anguish. It may be that others (such as a spouse or friend) can express the necessary evidence better than the client. The problem with the Supreme Court’s insistence on the high level of “magic words” and testimony necessary to clear the high hurdle the court has erected is that it ignores the problem of people who are not very expressive or have difficulty talking about their emotions. The court seems to ignore the role of a jury in assessing the demeanor of the plaintiff regarding the mental anguish and penalizes the ones who are not able to express themselves orally very well. In that event, it makes it even more important to some how convey the level of suffering by other means, either spouse, friends, or a counselor.