There is a practical conflict between what an average jury wants to hear about the mental anguish of an employee that has been discriminatorily terminated or treated and what the court of appeals judges in their review of the evidence of a case require. It’s been my experience that juries don’t want to hear a plaintiff moaning and groaning on the witness stand about his mental anguish and can be turned off by that. However, the courts of appeal require the plaintiff to present direct evidence of the nature, duration, and severity of the mental anguish, which must be a substantial disruption in the plaintiff’s daily routine. If the plaintiff fails to present this type of evidence, then the court will conduct a review of the record to see if there is any evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger. The courts require what I call “magic words” to be proven in the record in order to justify and allow an award of money for mental anguish. The judges also don’t get to see the demeanor of a plaintiff or any tears or other emotions that may be honestly expressed while testifying. How should an attorney prove this in the record for the appellate judges to review- “your Honor, let the record reflect that my client is crying a lot of tears on the witness stand” . Of course, this is silly, but I am just trying to illustrate the problem faced by the reality of trial and the “Monday morning quarterbacking” of some of these court of appeals judges. A court of appeals recently reversed the award of damages for mental anguish for a plaintiff because they ruled he didn’t prove the magic words. These magic words, which one or more needs to be proven, (if they can honestly be proven as reflecting a plaintiff’s inner emotions) and must show a mental sensation of pain resulting from such painful emotions as: “grief, severe disappointment, indignation, wounded pride, shame, despair or public humilation or a combination of any of these“. However, evidence that a plaintiff “was unable to sleep, was depressed, and suffered from anxiety…does not rise to the level of compensable mental anguish under Texas law”. In the case of Safeshred, Inc. v Martinez from the Third Court of Appeals in Austin, the court refused to allow mental anguish to a terminated employee who only said he experienced “sleeplessness, stress, and anxiety”. When one thinks about the difference between these words and the magic words, it seems that the courts are placing a hard practical burden for a plaintiff to have to be able to say these kind of matters under the pressure of a trial. Of course, others can express their observation of a plaintiff and try to express the suffering the plaintiff experienced but this is sometimes hard for people to do. Some people may have suffered a lot but because they can’t express themselves as well as others will be hurt by these requirements. The appellate courts should trust the juries, who were able to listen and observe the plaintiff to be able to determine the extent of the mental anguish and compensate or not compensate the plaintiff accordingly.