Yes, you can recover pain and suffering in a default judgment, but only if you ask for it and prove the amount
When a defendant does not respond to a lawsuit, the court can enter a default judgment in your favor — meaning you win without a trial. However, winning and collecting money for pain and suffering are two different things. The court will not automatically award pain and suffering damages just because the defendant defaulted. You must specifically request it, and in many cases, you must prove to the judge what that amount should be.
The rules for pain and suffering in default cases are stricter than in cases that go to trial. A judge has less information about what happened and cannot hear testimony from witnesses. This means you need to present clear evidence in writing that shows the defendant's actions caused you real harm — physical pain, emotional distress, loss of enjoyment of life, or other non-monetary injuries.
Key Takeaways
- Pain and suffering is not automatically included in a default judgment; you must request it in your complaint or in a separate motion.
- The judge will only award pain and suffering if you provide written evidence showing the type and extent of harm you suffered.
- Medical records, photographs, therapy notes, and your own detailed written account are the strongest forms of proof in a default case.
- Some states limit pain and suffering damages in default judgments or require a hearing where you present evidence to the judge in person.
- If you do not request pain and suffering before the default is entered, you may lose the right to claim it later.
How pain and suffering must be requested in a default case
The timing of your request matters. If you are filing the original lawsuit, your complaint should include a specific request for pain and suffering damages. Do not use vague language like "and other damages." Instead, write something like "Plaintiff seeks damages for pain and suffering in the amount of $[X]" or "Plaintiff seeks reasonable compensation for physical pain, emotional distress, and loss of enjoyment of life caused by Defendant's actions."
If the defendant has already defaulted and you did not mention pain and suffering in your original complaint, you may still be able to request it through a motion or at a hearing. However, this is harder and depends on your state's rules. Some courts allow you to amend your complaint even after default; others do not. The safest approach is to include pain and suffering in your original filing.
When you file for a default judgment, you will also file a document requesting the specific amount you want. This is where you lay out your case for pain and suffering in writing. The judge reads this document without hearing from you or the defendant.
What evidence the judge will actually look at
Because there is no trial in a default case, the judge cannot hear you describe your injuries or see witnesses testify. Instead, the judge reviews documents you submit. Medical records are the strongest evidence — they show that you sought treatment, what a healthcare provider found, and how long your condition lasted. Hospital discharge papers, doctor's notes, prescription records, and physical therapy invoices all carry weight because they come from neutral third parties.
Photographs are also valuable, especially in injury cases. Images of bruises, scars, or property damage taken shortly after the incident are more persuasive than descriptions alone. If you have before-and-after photos showing how an injury affected your appearance or mobility, include them.
Your own written account matters, but it is weaker than medical evidence. A detailed statement describing your pain, how long it lasted, what activities you could not do, and how the injury affected your daily life helps the judge understand the scope of your suffering. If you saw a therapist or counselor, those records are valuable too — they document emotional harm in the same way medical records document physical harm.
Pay stubs or a letter from your employer showing lost wages or missed work days can support a claim that pain and suffering was severe enough to keep you from your job. Receipts for medications, medical equipment, or home care services show the concrete costs of your recovery.
The limits courts place on pain and suffering in default judgments
Many states treat default judgments differently from judgments after trial, and some impose caps on pain and suffering damages when a defendant defaults. A few states do not allow pain and suffering at all in default cases — they limit you to actual out-of-pocket costs like medical bills and lost wages. Your state's rules matter significantly, so you need to know what your jurisdiction allows before you file.
Even in states that do allow pain and suffering in default cases, judges often award less than you might recover at trial. This is because the judge has only your side of the story and no cross-examination to test your claims. Some judges are skeptical of high pain and suffering awards when they have not heard live testimony.
A few states require a hearing even in default cases when you are asking for pain and suffering above a certain amount. In these jurisdictions, you must appear before the judge and present evidence in person, or at least be prepared to answer questions about your damages. This is closer to a mini-trial than a straightforward default proceeding.
How much pain and suffering you can realistically request
There is no formula for pain and suffering. Judges have discretion, and the amount depends on the severity of your injury, how long you suffered, your age, your occupation, and how the injury affected your life. A broken arm that healed in six weeks will support a lower award than a spinal injury that caused chronic pain for years.
In default cases, judges often use the medical bills as a starting point and multiply them by a factor of 1 to 5, depending on how serious the injury was. So if your medical bills were $10,000 and your injury was moderately serious, you might reasonably request $20,000 to $40,000 in pain and suffering. This is not a rule — it is a rough guide based on what courts commonly do.
Requesting an amount that is wildly out of proportion to your injuries can hurt your case. If you have $5,000 in medical bills from a minor injury and request $500,000 in pain and suffering, the judge may view your claim as unreasonable and award you nothing. Be specific about your damages and tie each number to evidence you are submitting.
What happens if you do not request pain and suffering before default
If your original complaint does not mention pain and suffering and the default judgment is already entered, you have limited options. Some courts allow you to file a motion to amend the judgment or reopen the default, but this is difficult and not always successful. The defendant can argue that they should have been given a chance to respond to a claim for pain and suffering that was not in the original lawsuit.
The safest approach is to include pain and suffering in your complaint from the start, even if you are not sure of the exact amount. You can always request less later, but you cannot ask for more if you did not mention it initially.
If the default judgment has been entered and you realize you forgot to request pain and suffering, talk to a lawyer about your options in your specific state. Some jurisdictions are more flexible than others about allowing amendments after default.
Pain and suffering versus other types of damages in default cases
Default judgments can include several types of damages: economic damages (medical bills, lost wages, property damage) and non-economic damages (pain and suffering, emotional distress, loss of enjoyment of life). Economic damages are easier to prove because they have receipts and documentation. Non-economic damages like pain and suffering require you to convince the judge that harm occurred even though there is no bill or receipt for it.
Some defendants will pay economic damages without argument but dispute pain and suffering. In a default case, the defendant is not there to argue, but the judge still has discretion to award only what seems reasonable based on the evidence you present. If your evidence of pain and suffering is weak, the judge may award only your economic damages.
Punitive damages — money meant to punish the defendant for especially wrongful conduct — are treated even more strictly in default cases. Many states do not allow punitive damages in default judgments at all, or allow them only in narrow circumstances. Focus your effort on pain and suffering and economic damages, which are more likely to be awarded.
Frequently Asked Questions
If the defendant defaults, do I automatically get pain and suffering?
No. Default means you win the case, but the judge still decides what damages to award. You must request pain and suffering in your complaint or in a motion, and you must provide evidence showing the harm you suffered. The judge will not award it unless you ask for it and show why it is reasonable.
Can I ask for pain and suffering after the default judgment is already entered?
It depends on your state and how much time has passed. Some courts allow you to file a motion to amend the judgment or reopen the default, but this is harder than requesting it upfront. The defendant can argue they should have had a chance to respond. Check your state's rules or talk to a lawyer about whether this is possible in your situation.
What if I do not have medical records to prove my pain and suffering?
Medical records are the strongest evidence, but not the only kind. Your own detailed written account of your pain, how long it lasted, and how it affected your life can help. Photographs, therapy notes, messages to friends or family describing your condition, and testimony from people who saw your suffering can also support your claim. The less medical documentation you have, the more important these other forms of evidence become.
Is there a limit to how much pain and suffering I can request in a default judgment?
Some states cap pain and suffering in default cases or do not allow it at all. Even in states that do allow it, judges often award less in default cases than they would at trial because they have only your evidence and no cross-examination. Request an amount that is reasonable based on your injury and the evidence you have, not an inflated number.
Do I need a lawyer to request pain and suffering in a default judgment?
You can file for a default judgment without a lawyer, but the rules vary by state and the process can be technical. A lawyer can make sure you request pain and suffering correctly, present your evidence effectively, and know what your state allows. If the amount in dispute is significant, talking to a lawyer before filing is worth considering.