Rethinking the additur question in federal courts.

• Author: Posner, Joseph R.

INTRODUCTION

The right to trial by jury is an essential characteristic of the federal court system protected under the Seventh Amendment to the Constitution of the United States of America. (1) Unfortunately, today jury trials are significantly burdensome on litigants, attorneys, and the court system as a whole. (2) As technological advances and new social issues inevitably alter the judicial system's landscape, consideration for efficient administration of justice is important in deciphering the scope of the right to trial by jury. (3)

Thus, procedural innovations that alleviate the burdens of modern trials are encouraged and considered constitutional, provided they do not undermine the Seventh Amendment's fundamental purpose. (4) One such innovation is remittitur, which is a procedural alternative to granting a new trial when a defendant seeks one based on the excessiveness of the verdict. (5) Remittitur avoids the need for a subsequent trial by conditioning a grant of the defendant's motion for new trial on the plaintiff's refusal to remit an amount necessary to cure an excessive award. (6) No such opportunity exists for plaintiffs seeking similar relief from inadequate verdicts because the use of additur, remittitur's procedural counterpart, is banned in federal courts. (7)

The impermissibility of additur and permissibility of remittitur are based on the Supreme Court's determination in Dimick v. Schiedt (8) that judicially increasing a verdict award violates the Seventh Amendment's right to trial by jury, while decreasing the verdict does not. (9) In contrast, many state jurisdictions, unshackled by the Court's interpretation of the Seventh Amendment, (10) find that their own constitutional protections of the right to trial by jury permit both additur and remittitur. (11) The acceptance and application of additur in state jurisdictions reflects the incongruity and inefficiency in proscribing one device and not the other. (12) Furthermore, the specious reasoning and disputed historical foundations on which that proscription is premised continue to invite questions of why the ban on additur persists through seventy-five years of federal jurisprudence and whether it should continue today. (13)

This Note will argue that additur, like remittitur, is consistent with the right to trial by jury. (14) Part II briefly discusses the fundamental mechanics and procedural effects of additur and remittitur. (15) Part III considers additur and remittitur's historical development. (16) Part III(A) discusses the common law precedents leading up to the Dimick decision. (17) Part III(B) examines the Dimick decision and Part III(C) examines additur's treatment in various state jurisdictions where it is employed. (18) Part IV reviews the current treatment of additur in federal courts and subsequent Supreme Court decisions that potentially affect the Dimick decision. (19) Finally, Part V argues that the asymmetrical treatment of additur and remittitur in federal court is erroneous and that proscribing additur is counterproductive. (20) Specifically, this Note analyzes objections to the historical foundations and reasoning used to distinguish additur from remittitur in the Dimick decision. (21) This Note concludes that additur, as a modern procedural device, is consistent with the principals of the right to trial by jury and its continued proscription only inhibits productive evolution of the civil jury in federal courts. (22) Accordingly, this Note urges reconsideration of the constitutionality of additur in federal courts. (23)

FUNDAMENTAL MECHANICS OF ADDITUR AND REMITTITUR

The remittitur procedure in federal courts derives from the trial court's authority to grant a new trial. (24) Remittitur occurs in circumstances where the defendant moves for a new trial alleging that a jury verdict is legally impermissible because the amount of damages awarded is excessive. (25) If the trial court finds the verdict amount is so excessive as to be contrary to the evidence presented at trial, it may order a completely new trial or a partial new trial limited to the proper assessment of damages. (26) Provided the sole defect in the verdict is excessiveness, the remittitur procedure enables the court to condition denial of the defendant's motion for new trial upon the plaintiff's consent to remit the portion of the verdict deemed excessive. (27) Thus, remittitur provides the parties with an alternative to enduring a new trial. (28)

Similarly, additur operates where the amount of damages awarded by the jury is legally impermissible, but in connection with a plaintiff's motion for new trial based on the allegation that the amount is inadequate. (29) If the trial court finds the verdict amount so inadequate as to be contrary to the evidence presented at trial, it can grant a complete or partial new trial. (30) In federal court, this relief is the only form available, even where the sole ground for granting a new trial is the verdict's inadequacy. (31) In numerous states, alternative relief is available through additur. (32) In practice, this procedure operates by the trial judge conditioning denial of the plaintiff's motion upon the defendant consenting to an increase in damages by an amount deemed necessary to cure the inadequacy of the jury verdict. (33) Thus, additur, like remittitur, avoids the need for a subsequent trial. (34)

HISTORICAL DEVELOPMENT OF ADDITUR AND REMITTITUR

Common Law origins

Since both remittitur and additur are procedural corollaries of new trial motions, the historical development of each is grounded in the trial court's power to remedy defects in a jury verdict by granting a new trial. (35) However, the common law practice of granting a new trial for excessive damages emerged separately and earlier than the new trial remedy for inadequate damages. (36) At the time the Federal Constitution was adopted in 1791, English trial courts made little use of remittitur and the additur procedure was nonexistent. (37) Remittitur and additur each developed later in American jurisprudence during the nineteenth and twentieth century. (38) The leading case on remittitur is an 1822 decision by Justice Story in which he found the procedure constitutionally permissible, albeit hesitantly. (39) Judicial use of additur, however, did not appear in an unadulterated form until almost the end of the nineteenth century. (40)

Treatment in Federal Courts: Dimick v. Schiedt

In 1935, for the first and only time, the Supreme Court of the United States directly considered the constitutional validity of additur in Dimick v. Schiedt (41) The Court, in a five-to-four decision, condemned additur as an unconstitutional reexamination of the jury verdict in violation of the plaintiff's Seventh Amendment rights. (42) Although the case involved only an additur order by the district court judge, the inescapable analogy to remittitur, along with a century's worth of remittitur use in federal courts, compelled the Court to also address the constitutionality of remittitur. (43) With significant deference to stare decisis, the majority begrudgingly surmised that remittitur was constitutionally permissible. (44) Remittitur was distinguished from additur on two grounds: first, remittitur, not additur, was recognized at common law prior to adoption of the Constitution; (45) and, second, remittitur judicially decreases a verdict to an amount already passed on by the jury, whereas additur is a "bald addition of something which in no sense can be said to be included in the verdict." (46)

The dissent in Dimick, authored by Justice Stone and joined by Justices Brandeis and Cardozo, vigorously refutes the majority's historical arguments, maintaining that proper historical and textual analysis of the Seventh Amendment suggests that its only purpose was "to preserve the essentials of the jury trial as it was known to the common law before the adoption of the Constitution." (47) Justice Stone considered this a constitutional guarantee that parties have the benefits of submitting factual issues to a jury, but not a blueprint for how these benefits must be obtained. (48) Thus interpreted, the Seventh Amendment does not proscribe any particular procedure for dealing with legal defects in jury verdicts. (49) Justice Stone, therefore, regarded searching among "the legal scrap heap of a century and a half ago" for remnants of the additur and remittitur procedures as unproductive. (50) Adopting this more flexible interpretation of the Seventh Amendment, under which the Court had already approved other modern post-verdict procedures, the dissent concludes that neither additur nor remittitur intruded upon the jury's essential function. (51)

Treatment in State Courts

Dimick does not preclude state courts from issuing additur orders because the Seventh Amendment restricts the federal government only. (52) Hence, when analyzing additur's constitutionality under their respective state constitutions and comparable provisions protecting the right to jury trial, state courts are often persuaded by the aforementioned reasoning of the dissent in Dimick. (53) As a result, the highest courts of numerous jurisdictions have held that additur does not infringe on a plaintiff's constitutional right to jury determination of damages. (54) Notably, the Supreme Court of California, in a widely cited decision endorsing additur, went so far as to overrule its prior decision that explicitly adopted the majority's reasoning in Dimick. (55) other jurisdictions with decisions in line with Dimick have enacted statutes on additur which, at least, temper the authority of those decisions. (56) There are states currently prohibiting additur based on high court decisions that accept the reasoning of the Dimick court, (57) but they are an arguable minority. (58)

The precise mechanics of and enthusiasm for additur vary amongst jurisdictions that use the procedure. (59) Massachusetts not only permits...