Right Column/counterpoint: an Idea Whose Time Has Come (again)
| Publication year | 2009 |
| Pages | 105 |
| Citation | Vol. 38 No. 8 Pg. 105 |
2009, August, Pg. 105. Right Column/Counterpoint: An Idea Whose Time Has Come (Again)
August 2009
Vol. 38, No. 8 [Page 105]
Point/Counterpoint articles provide an open forum for the expression of ideas and address issues that are substantially related to the law, to the practice of law, or to lawyers (not matters of general interest). Any CBA member wishing to submit a Point/Counterpoint article should work with another CBA member to provide a companion article that argues for a significantly different conclusion. For further information and writing guidelines, to discuss topics in advance, or to get help finding someone to write an opposing viewpoint, contact Point/Counterpoint Coordinating Editor Fred Burtzos at fred.burtzos.gdz0@statefarm.com.
About the Author
Doug McQuiston has practiced in the field of insurance defense litigation for more than twenty-seven years (303) 843-4921, dougmcquiston@yahoo.com. The ideas and thoughts expressed in this article are those of the author and not those of any other person or entity.
In the world of civil litigation, there are rare fact patterns that might justify the award of punitive damages. However, even where punitive damages may be warranted in the "micro" context of a specific case, their effect in the "macro" context tends to be arbitrary, unpredictable, and inconsistent. Too often, a punitive claim is made not on its merits, but as a tactical wedge between a defendant and its insurer to extort a higher compensatory settlement.
Worse, in many cases, the punitive claim is used as a trial tactic to insert otherwise inadmissible evidence into the plaintiff's case in an unbifurcated trial, knowing the actual punitive damages claim for which such evidence might be arguably probative will not survive a motion for directed verdict. Thus, the inflammatory evidence introduced as probative of the punitive claim unfairly ramps up the jury's temper, resulting in an unfairly skewed compensatory award. In their unguarded moments, the more candid of my colleagues on the plaintiff's side have admitted as much to me.
It can be argued that the corrosive effect of punitive damages exceeds any positive societal impact. U.S. Supreme Court Justice David Souter recognized this when he noted in Exxon Shipping Co. v. Baker that "punitive damages overall are higher and more frequent in the United States than they are anywhere else."(fn1) Many business studies have shown that punitive damages awards (along with excessive verdicts in general) operate as a drag on our domestic economy, a hidden "tax" on the cost of virtually every product made or sold in America.(fn2)
Justice Souter recognized a problem with punitive damages claims beyond their frequency: "[T]he real problem, it seems, is the stark unpredictability of punitive awards."(fn3) That unpredictability was a major factor in the Court's ruling that a 1:1 ratio of punitive damages to compensatory damages is, in virtually all cases, a "constitutional upper limit."(fn4)
Unpredictability is especially troubling because it means there is no discernible standard at the state or national level as to what conduct is "bad enough" to warrant such an award. As a result, any measurable deterrent effect is negligible. There is no practical way for individual or corporate defendants to regulate their behavior to stay shy of "the line," because the line is constantly moving.
Even on the plaintiffs' side, this unpredictability hurts. Some deserving litigants get nothing, whereas others get a windfall that, by its definition, does not constitute "damages."(fn5) The inherent inconsistency and unfairness of punitive awards has given rise to the phrase "the litigation lottery."(fn6) That perception of fickleness and...
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